The World Court Reference Guide and Case-Law Digest : Judgments, Advisory Opinions and Orders of the International Court of Justice (2001-2010) and Case-Law Digest (1992-2010) [1 ed.] 9789004261891, 9789004261877

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The World Court Reference Guide and Case-Law Digest

The World Court Reference Guide and Case-Law Digest Judgments, Advisory Opinions and Orders of the International Court of Justice (2001–2010) and Case-Law Digest (1992–2010) Compiled and Edited by

Bimal N. Patel Editorial Assistants

Param Pandya, Varun Chauhan, Kanaiya Thaker and Vijay Vaghela

Leiden • boston 2014

Library of Congress Cataloging-in-Publication Data The World Court reference guide and case-law digest : judgments, advisory opinions and orders of the International Court of Justice (2001–2010) and case-law digest (1992–2010) / By Bimal N. Patel.   pages cm  Includes index.  ISBN 978-90-04-26187-7 (hardback : alk. paper) — ISBN 978-90-04-26189-1 (e-book)  1. International law—Digests. 2. International Court of Justice—Records and correspondence. 3. Arbitration (International law)—Digests. I. Patel, Bimal N., editor.  KZ213.W68 2014  341.5’52026—dc23 

2013042890

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-26187-7 (hardback) ISBN 978-90-04-26189-1 (e-book) Copyright 2014 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

Dedicated posthumously to (Late) Professor Shabtai Rosenne and (Late) Judge Pieter Kooijmans for their guidance and inspiration for the first Volume & All those who continue to contribute to the Functioning of the World Court for its efforts towards the peaceful settlement of international disputes and promotion of international law as a tool to maintain a just and peaceful world order . . . 

Contents Foreword ............................................................................................................ Acknowledgments ...........................................................................................

xiii xv

Introduction ......................................................................................................

1

No General Case/Advisory Opinion List No. 1

87 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) . 2 88 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United Kingdom) ........................................................................ 3 89 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. USA) ........ 4 90 Oil Platforms (Iran v. USA) ............................................ 5 91 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) .................................................................. 6 92 Gabčíkovo-Nagymaros Project (Hungary/Slovakia)  7 94 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) ......................... 8 96 Fisheries Jurisdiction (Spain v. Canada) .................... 9 97 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) ................................ 10 98 Kasikili/Sedudu Island (Botswana/Namibia) ........... 11 99 Vienna Convention on Consular Relations (Paraguay v. USA) ........................................................

7

27 37 47

63 110 122 162

171 175 184

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Contents

12 101 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon) .......................... 13 102 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) .................................................. 14 103 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) ...................... 15 104 LaGrand (Germany v. United States of America)  . 16 105 Legality of Use of Force (Serbia v. Belgium) ............ 17 106 Legality of Use of Force (Serbia v. Canada) ............. 18 107 Legality of Use of Force (Serbia v. France) ............... 19 108 Legality of Use of Force (Serbia v. Germany) .......... 20 109 Legality of Use of Force (Serbia v. Italy) ................... 21 110 Legality of Use of Force (Serbia v. the Netherlands)  22 111 Legality of Use of Force (Serbia v. Portugal) ............ 23 112 Legality of Use of Force (Yugoslavia v. Spain) ......... 24 113 Legality of Use of Force (Serbia v. United Kingdom) ........................................................................ 25 114 Legality of Use of Force (Yugoslavia v. USA) ........... 26 115 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi)  27 116 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)  28 117 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)  29 118 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) ........................................................ 30 119 Aerial Incident of 10 August 1999 (Pakistan v. India) ............................................................................... 31 120 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) ............................................ 32 121 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) ................................ 33 122 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the

188 192 204 222 237 252 266 280 294 308 323 338 343 357 361 364 389 392 402 408 420



Contents

Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) .......................................... 34 123 Certain Property (Liechtenstein v. Germany) ......... 35 124 Territorial and Maritime Dispute (Nicaragua v. Colombia) ....................................................................... 36 125 Frontier Dispute (Benin/Niger) .................................... 37 126 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) ........................................... 38 127 Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) .......................................... 39 128 Avena and Other Mexican Nationals (Mexico v. United States of America) ......................................... 40 129 Certain Criminal Proceedings in France (Republic of the Congo v. France) .............................................. 41 130 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) ...................................................................... 42 132 Maritime Delimitation in the Black Sea (Romania v. Ukraine) .................................................. 43 133 Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) ............................. 44 134 Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland) ..................................... 45 135 Pulp Mills on the River Uruguay (Argentina v. Uruguay) ......................................................................... 46 136 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) ................... 47 137 Maritime Dispute (Peru v. Chile) ................................ 48 138 Aerial Herbicide Spraying (Ecuador v. Colombia) . 49 139 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America) .......................................................

ix

433 439 447 457 470

486 491 500 504 516 525 539 542 560 571 572

574

x

Contents

50 140 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)  51 142 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) ................................................. 52 143 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) .......................................... 53 144 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) ........................... 54 145 Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland) ................................................................... 55 147 Certain Questions Concerning Diplomatic Relations (Honduras v. Brazil) ................................. 56 148 Whaling in the Antarctic (Australia v. Japan) ......... 57 149 Frontier Dispute (Burkina Faso/Niger) ...................... 58 150 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) ..................

584 591 593 598 602 605 606 607 609

International Court of Justice Advisory Opinions 1 131 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ................... 615 2 141 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) .......................................................................... 630 3 146 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Request for Advisory Opinion) ....................................................... 642 Analysis and Trend Patterns Duration of Cases and Advisory Opinions of the PCIJ and the ICJ ............................................................ 649



Contents

xi

Records of States as Applicant(s) and/or Respondent(s) ............................................................... 683 Records of States and Authorised Organisations on Written and Oral Statements ............................. 687 Records of Declarations and Opinions of Judges and Judge ad hoc ......................................................... 717 Case-Law Digest Part I Substantive Law Chapter I: Sources and Rules of International  Law ................................................................................ Sub-chapter I: Custom and Customary Law .... Sub-chapter II: General Principles of Law ........ Sub-chapter III: Treaties ......................................... Chapter II: The International Society ..................... Sub-chapter I: States ................................................ Sub-chapter II: Entities other than States ......... Sub-chapter III: International Organisations  . Chapter III: The Violation of International Law  Sub-chapter I: International Responsibility .....

855 855 902 906 953 955 1006 1007 1007 1007

Part II Law of Procedure Chapter I: The Peaceful Settlement of  International Disputes ....................................... Sub-Chapter I: The International Dispute  ..... Sub-Chapter II: Diplomatic Means of  Settlement of Dispute ........................................ Sub-Chapter III: Judicial Settlement, the  International Court of Justice .......................... Sub-Chapter IV: Advisory Proceedings ..............

1051 1051 1053 1057 1150

xii

Contents Indices

Covenant of the League of Nations .................... Statute of the Permanent Court of  International Justice ........................................... Charter of the United Nations .............................. ICJ Statute ................................................................... Rules of Court of the International Court  of Justice ................................................................. International Court of Justices Cases and  Advisory Opinions ............................................... Treaties ........................................................................

1165 1165 1165 1166 1167 1168 1171

Foreword The international community now counts over 90 years of experience in the judicial settlement of international disputes, with the International Court of Justice (‘ICJ’) having inherited from the Permanent Court of International Justice (‘PCIJ’) the fundamental role in this regard as the principal judicial organ of the United Nations. Through its work, the Court significantly contributes to upholding and promoting the rule of law at the international level and, correspondingly, in the context of inter-State relations. The Court fulfils this noble mission by determining existing law and rendering justice between States. Mr Bimal Patel has assembled an impressive compilation of both institutions’ respective case load, spanning a period of 88 years; namely, from the inception of the PCIJ in 1922 to the ICJ’s recent activities, providing coverage up until 31 December 2010 published in two Volumes. The current Volume supplements the first Volume of the World Court Reference Guide, which was published in 2002.1 Rich in its typology, this Volume not only offers a snapshot of every case – be it in recounting the procedural history or in recalling the technical details related to every decision canvassed – but it also provides its reader with an account of the principal participants in every one of those decisions, both on the bench and at the counsel table. After all, as the late Professor Shabtai Rosenne wrote by way of introduction to the first Volume in 2002, ‘[t]he Court is not an abstract entity but a body of human beings working together, as judges, as parties before it, and as members of its Registry’. It is thus important to also contemplate the Court’s work through a human prism. To the extent possible with a digest-type publication, Patel’s contribution tells us a story about the cases of both institutions. Upon first glance, every entry in this Volume provides detailed information about the various aspects of the decisions and the building blocks that underpin them. Yet, when viewed as a whole, the entries provide insight into the thinking and human process that paved the way for those decisions. As a result, the reader is left with some sense of being on the judicial ‘sidelines’ and is 1 The first Volume published in 2002 is entitled “The World Court Reference Guide”. ISBN 978-90-41-11907-0.

xiv

Foreword

presented with all the ingredients to appreciate what transpired at both the Permanent Court and the present-day World Court in any given case. Patel’s work provides us with succinct but accurate freeze-framed accounts of the contentious and advisory proceedings that made their way from the Court’s docket into orders, advisory opinions and judgments, thereby presenting a completed puzzle of the Court’s work. This work should be of assistance to practitioners, scholars, international law students and any individuals commonly interested in the kind of legal issues that form the basis for litigation before the Court. This new Volume contains a few welcome additions to facilitate the reader’s navigation through the rich jurisprudence emanating from the World Court and its predecessor institution. The first Volume corrals the final submissions, the essence of orders, judgments and advisory opinions, the relevant legal sources, litigation teams and the operative paragraphs for jurisprudence spanning the period of 1922 to 31 December 2000, along with head notes and other practical information. The new Volume updates the previous Volume to 2010, provides interesting analytical patterns related to this jurisprudence, and really makes a valuable contribution to the literature. In particular, it contains a case-law digest of legal maxims and extracts of the Court’s jurisprudence covering the period of 1993 to 2010, thereby filling a dearth in existing secondary sources. The index and the section containing the official documents relevant to the Court’s work and jurisprudence are also particularly helpful. The author should be commended for deploying considerable effort in compiling an impressive collection of data, which will undoubtedly be of assistance to anyone interested in the Court’s work and mandate, and especially to those interested in getting a glimpse into its inner workings and the individuals involved. This new Volume of such a valuable resource will no doubt maintain its status as a must-have for any good public international law library. Peter Tomka President of the International Court of Justice The Hague, May 2013

Acknowledgments It has been indeed a most enriching experience to prepare an additional Volume of the World Court Reference Guide.1 It is almost a scholarly luxury to read each and every line of each and every order (procedural and interim) and decision and the advisory opinions of the PCIJ and the ICJ, since 1922 through 2010, running into thousands of pages and many more thousands of lines. Reviews of the first Volume published in the American Journal of International Law, Asian JIL, African YbIL, Indian JIL, Annuaire francaise de droit international, among others remained a critical source of inspiration for the new Volume. I feel highly privileged and honoured to receive a most encouraging foreword by H. E. Judge Peter Tomka, President of the International Court of Justice. President Tomka witnessed the launching of the first Volume in 2002, the year in which he was elected to the Court as the youngest ever member in the Court’s history and now has bestowed his wishes through the foreword as the President of the Court. While placing the second Volume before the world community, I would like to express most deep gratitude to Professor Shabtai Rosenne, who from heaven must be curiously observing whether his expectation standards are met by the second Volume. Mr Arthur Witteveen, to whom I dedicated the first Volume, has been instrumental and source of continuous inspiration, despite his retirement from an illustrious inning as the First Secretary and the Head of Information Department in the Registry of the Court. It has been indeed a source of encouragement to receive appreciation from the former and sitting member judges of the Court and various tribunals, international legal forums and think-tanks, and most notably from some of the practitioners at the Court whose names appear as members of the litigation teams and also judge or judge ad hoc as the Court has grown and so did their careers – shifting from bar to bench and bench to bar. The pleasant and friendly current and former staff in the Information Department of the Registry, most notably, Boris Heim, Laurence Blairon (now Spokesperson of the ICC) and Susanna Burer (now Secretary to the 1 “The World Court Reference Guide”. ISBN 978-90-41-11907-0. 2002.

xvi

Acknowledgments

Registrar) have been an important source of encouragement in the journey culminating into this second Volume. The efforts of the Registry led by H.E Mr Philippe Couvreur, Registrar, to promote and facilitate scholarship and writings on the World Court deserve deep appreciation. The everhelpful staff of the Peace Palace Library, right from its Director Mr Jeroen Vervliet, Deputy Mr Ingrid Kost to enthusiastic staff Rob and Kees deserve deep appreciation for their untiring support from 1998 when I started the preparation of the first Volume. I am very grateful to Ms Annebeth Rosenboom, the publisher (now Senior Legal Officer, UN Ocean Affairs Division, New York) who oversaw the publication of the first Volume by Nijhoff in 2002. This Volume has been published with the excellent support of Ms Ingeborg van der Laan and her team and I remain grateful to Brill Publishers for their publication of this Volume. I am grateful to my student assistants Param Pandya and Varun ­Chauhan, my staff Mr Vijay Vaghela and Mr Kanaiya Thakker for their editorial assistance. I hope these brilliant and committed students will one day prepare their own editions on the Court’s jurisprudence. How can I express words of appreciation and gratitude to Mrs Rupal Patel and our two sons, Pruthvi-Gerben (Bittu) and Nand (Om)? Their love, encouragement and patience have remained a single most treasured source of inspiration and support in all academic and research endeavours. I am thankful to my parents in India and the Netherlands and all family members for their moral support and encouragement in all professional accomplishments. This Volume is not a publication of the Court or of the United Nations, neither has it been funded by any source. It is strictly a private publication, published by Brill. I apologise for any error or omission for which I invite the readers and users of this book to send their suggestions or comments to me at ­[email protected]. Bimal N. Patel Gandhinagar (India) October 2013

INTRODUCTION The World Court Reference Guide and Case-Law Digest – Second Volume (2012), is an outcome of the research and consultation experience that has been gathered since the publication of the first Volume in September 2002. This second Volume is wider in its scope of research – updates the first Volume of the reference guide from 1 January 2001 to 31 December 2010; it includes case-law digest from 1992 to 2010 and identifies analytical patterns on various procedural judicial and non-judicial matter for the first time.1 Although the case-law digest of the PCIJ and the ICJ has been prepared and published by various commentators and researchers, I found a lack of continuity of research on this very important work. Edvard Hambro produced “The Case Law of the International Court – a repertoire of the Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and of the International Court of Justice,” published in 1952 and Giuliana ­Ziccardi Capaldo produced “the Repertory of Decisions of the International Court of Justice (1947–1992),” published in 1995. These works have been extremely useful in learning “the Court’s decisive role in ascertaining, noting and developing the rules of international law”.2 However, no case-law digest in the style and form prepared by these two authors has been prepared on the Court’s decisions since 1993. Therefore, while preparing the second Volume of the World Court Reference Guide, I decided to embark upon updating the case-law digest, while using their style and form, albeit in a modified form. As a result, this Volume provides continuity to the research work on the case-law digest. While the works of Hambro and Capaldo had to deal largely with classical and traditional areas of international law which were interpreted and applied by the Court (PCIJ and later the ICJ) in resolving disputes and rendering advisory opinions, this Volume had a challenge to identify, understand, organise in a systematic manner the Court’s pronouncements in the newly emerging areas of

1  The data of the current Volume will be also quite useful to assess the role and effectiveness of the Court and the State Practice and see the gap between the Recommendations made by states back in 1971 and their practices till 2010. I attempted to perform the assessment based on data till end of 2000 and concluded that the gap was significantly wide. See Bimal N. Patel, “Recommendations on the Enhancement of Role and Effectiveness of the International Court of Justice and the State Practice”: Gap between Recommendations and Practice (1971–2006), 11 Singapore Yearbook of International Law 99–122 (2007). 2 Capaldo (1995), p. lix.

2

Introduction

international law, such as international environmental law, international criminal law, international humanitarian law, diplomatic privileges and immunities, consular relations. Thus, the Court’s ascertainment and pronouncements of relevant general rules in these areas will be very useful for the litigating parties in the future. The case-law digest will also be useful to understand and put in a proper perspective the on-going debate of fragmentation of international law due to, among others, creation and functioning of various international courts and tribunals. Although the Court does not possess legislative powers or the power to codify international law, the Court’s pronouncements in the newly emerging areas of law in the last two decades, reflect a different orientation in the future. Advisory opinions rendered by the Court particularly enable the readers to think of this emerging trend. Furthermore, the judicial activism which is largely seen in the domestic courts is slowly permeating through the towers of the Peace Palace which hosts the Court. One can see that the pronouncements extracted in form of case-law digest in this Volume quite support this drift. This Volume describes the evolution of the history of each of the case and advisory opinions that has been dealt by the ICJ since 2001. Each case is systematically organised – the final question or claim made by the parties, basis of jurisdiction, proceedings, orders rendered by the Court, headnotes and operative paragraphs of the judgments, orders and advisory opinions, names of judges and ad hoc judges who have appended declaration, separate opinion, dissenting opinion individually or jointly with other judges, each source of law the Court has cited and information on the litigation teams. The Volume also covers the advisory opinions rendered by the ICJ since 2001. The format is similar to the contentious cases – begins with the exact question(s) placed by the requesting organisation, source of authority seeking the opinion, duration of the proceedings, states, organisations and others authorised by the Court to file written statements and present oral statements during the public hearings, headnotes, operative paragraph, record of opinions and sources of law. The analysis section covers four patterns of analysis – duration of cases and advisory opinions of the PCIJ and the ICJ; records of states as applicant(s) and/ or respondent(s); records of states and authorised organisations on written and oral statements; and records of declarations and opinions of judges and judge ad hoc. This Volume provides case-law digest of legal maxims and extracts from cases that have been dealt by the ICJ since 1992 till 31 December 2010. It follows the “Manual” style (followed by Capaldo and modified by the current author as per the requirements) according to a thematic outline and comprises into titles, chapters, sections, and paragraphs. The first part consists of substantive law which covers sources and rules of international law, the subjects of international law and the international society. The second part consists of law of procedure



Introduction

3

with two main chapters on the peaceful settlement of international disputes and the advisory proceedings. The case-law digests are literal citations, as per the Anglo-American style, for the systematic presentation of judicial pronouncements. Each maxim carries relevant paragraph and pages of the decision of the Court, using the Court’s formal citation method. Each pronouncement is organised in a numerical chronology order, starting from 001. The Volume finally provides a non-exhaustive list of indexes. The index part comprises index to the Covenant of the League of Nations, PCIJ Statue and PCIJ Rules, UN Charter, the ICJ Statute and the ICJ Rules (including all versions), Arbitration Awards, PCIJ and ICJ cases and advisory opinions and treaties. The readers are requested to refer the whole judgment because a few sentences taken from a judgment can only be properly understood if read in the context of the whole judgment, and if care is taken to consider them in relation to the facts of the case which gave rise to the Court’s decision. No sentence can be isolated from its context. The same rule must be applied here as is applied to the interpretation of treaties, a rule which led the Permanent Court of International Justice to say in its advisory opinion on the competence of the International Labour Organization and the conditions of labour in agriculture (P.C.I.J., Series B, Nos 2 and 3, p. 23): “In considering the question before the Court upon the language of the Treaty, it is obvious that the Treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, if detached from the context, may be interpreted in more than one sense”.3

3 Edvard Hambro, The Case Law of the International Court, Leyden, Sijthoffs, 1952, p. vi–vii.

Case / Advisory Opinion

CASE CONCERNING MARITIME DELIMITATION AND TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN (Qatar v. Bahrain) General List No.: 87 Mean(s) and date of institution of the case: Application (8 July 1991) Statement of Claim/Question: Qatar   I. To adjudge and declare in accordance with international law: A. (1) That the State of Qatar has sovereignty over the Hawar islands; (2) That Dibal and Qit’at Jaradah shoals are low-tide elevations which are under Qatar’s sovereignty;

B. (1) That the State of Bahrain has no sovereignty over the island of Janan; (2) That the State of Bahrain has no sovereignty over Zubarah; (3) That any claim by Bahrain concerning archipelagic baselines and areas for fishing for pearls and swimming fish would be irrelevant for the purpose of maritime delimitation in the present case; II. To draw a single maritime boundary between the maritime areas of seabed, subsoil and superjacent waters appertaining respectively to the State of Qatar and the State of Bahrain on the basis that Zubarah, the Hawar islands and the island of Janan appertain to the State of Qatar and not to the State of Bahrain, that boundary starting from point 2 of the delimitation agreement concluded between Bahrain and Iran in 1971 (51° 05' 54" E and 27° 02' 47" N), thence proceeding in a southerly direction up to BLV (50° 57' 30" E and 26° 33' 35" N), then following the line of the British decision of 23 December 1947 up to NSLB (50° 49' 48" E and 26° 21' 24" N) and up to point L (50° 43' 00" E and 25° 47' 27" N), thence proceeding to point S1 of the delimitation agreement concluded by Bahrain and Saudi Arabia in 1958 (50° 31' 45" E and 25° 35' 38" N).” Basis of jurisdiction invoked by the Applicant(s): Exchanges of letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain dated 19 and 26 December 1987, and the document headed “Minutes” and signed at Doha on 25 December 1990 by the Ministers of Foreign Affairs of Bahrain, Qatar and Saudi Arabia.

8

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to)

Public sittings

Total

8 July 1991 to 16 March 2001 (9 years/8 months/8 days)

Preliminary objection

14 July 1991 & 18 August 1991 to 1 July 1994 Between 28 February and (2 years/11 months/17 days) 11 March 1994

Orders Date of Order and Authority

Content

11 October 1991 President Sir Robert Jennings

Decision that the written proceedings shall first be addressed to the questions of the jurisdiction of the Court to entertain the dispute and of the admissibility of the Application and Fixing of time-limits: 10 February 1992 – Memorial of Qatar 11 June 1992 – Counter-Memorial of Bahrain

26 June 1992 Court – President Sir Robert Jennings

Direction that a Reply by the Applicant and a Rejoinder by the Respondent shall be filed on the questions of jurisdiction and admissibility and fixing of time-limit: 28 September 1992 – Reply of Qatar 29 December 1992 – Rejoinder of Bahrain

28 April 1995 Court – President Bedjaoui

Fixing of time-limits: 29 February 1996 – Memorial on the merits of both Parties

1 February 1996 Court – President Bedjaoui

Extension of time-limits: From 29 February to 30 September 1996 – Memorial of Bahrain

30 October 1996 President Bedjaoui

Fixing of time-limits: 31 December 1997 – Counter-Memorial of both Parties

30 March 1998 Court – President Schwebel

Filing of an interim report by Qatar by 30 September 1998, to be as comprehensive and specific as possible on the question of authenticity of each of the documents challenged by Bahrain in the case, direction that Reply of Bahrain will contain its observations on the interim report of Qatar by 30 March 1999



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

9

Orders (cont.) 17 February 1999 Court – President Schwebel

Places on record the decision of Qatar to disregard certain documents challenged by Bahrain and decides that the Replies whose submission was directed by the Order of 30 March 1998 will not rely on these documents and extension of time-limit until 30 May 1999 for the submission of the replies by both Parties

Request for extension of time-limits State Party Bahrain (1 time)

Remarks Bahrain requests the Court to extend to 30 November 1996 the time-limit for the filing of the memorial on the merits – Qatar expresses that such a long extension is having an inadequate justification

Section B – Jurisdiction and Admissibility (Part I) Official citation: Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 112 Date of Judgment: 1 July 1994 Authoritative text: English Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Oda, Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar-­Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda; Registrar Valencia-Ospina Headnotes: Jurisdiction of the Court – Legal nature of texts relied on to found jurisdiction – 1987 exchanges of letters and 1990 “Minutes” creating rights and obligations in international law for the Parties and therefore constituting international agreements. Intentions of the signatories of the text – Subsequent conduct of the Parties. Formula implying that the whole of the dispute would be submitted to the Court – Application comprising only some of the elements of the dispute. Opportunity afforded to the Parties by the Court to ensure submission to it of the entire dispute – Submission either by joint act or separate acts.

10

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Text of the operative paragraph(s) (p. 126, para. 41) THE COURT, (1) By 15 votes to 1, Finds that the exchanges of letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain dated 19 and 26 December 1987, and the document headed “Minutes” and signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, are international agreements creating rights and obligations for the Parties; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Judges ad hoc Valticos, Ruda AGAINST: Judge Oda (2) By 15 votes to 1, Finds that by the terMs. of those agreements of the Parties have undertaken to submit to the Court the whole of the dispute between them, as circumscribed by the text proposed by Bahrain to Qatar on 26 October 1988, and accepted by Qatar in December 1990, referred to in the 1990 Doha Minutes as the “Bahraini formula”; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Judges ad hoc Valticos, Ruda AGAINST: Judge Oda (3) By 15 votes to 1, Decides to afford the Parties the opportunity to submit to the Court the whole of the Dispute IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Judges ad hoc Valticos, Ruda AGAINST: Judge Oda (4) By 15 votes to 1, Fixes 30 November 1994 as the time-limit within which the Parties are, jointly or separately, to take action to this end;



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

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IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Judges ad hoc ­Valticos, Ruda AGAINST: Judge Oda (5) By 15 votes to 1, Reserves any other matters for subsequent decision. IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Judges ad hoc Valticos, Ruda AGAINST: Judge Oda Declarations/Opinions Declaration

Judge Shahabuddeen

Separate Opinion

Vice-President Schwebel, Judge ad hoc Valticos

Dissenting Opinion

Judge Oda

Sources of Law UN Charter

Art. 102, p. 122(28, 29)

ICJ Statute

Art. 31(3), p. 114(7) Art. 40(2), p. 114(2) Art. 40(3), p. 114(2) Art. 40, p. 123(34)

ICJ Rules of Court

Art. 31, p. 114(5) Art. 38, p. 123–124(34) Art. 53(2), p. 115(9) Art. 56, p. 115(9) Art. 56(3), p. 115(9) Art. 61(4), p. 115(12) Art. 72, p. 115(12)

PCIJ case-law

Chorzów Factory, [Jurisdiction, P.C.I.J., Series A, No. 9, p. 19], p. 125–126(40) Chorzów Factory, [Claim for Indemnity, Merits, P.C.I.J., Series A, No. 17, p. 51, 62–63], p. 125–126(40)

12

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Sources of Law (cont.) ICJ case-law

Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 39(96)], p. 120–121(23) Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), [I.C.J. Report 1992, p. 406(73)], p. 125–126(40)

Treaties

Vienna Convention on the Law of Treaties of 23 May 1969, p. 120(23) Exchanges of letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21 December 1987, p. 116(17), 116–117(18), 120(22), 122(30), 123(31), 124(37), 126(41) “Minutes” signed at Dohan on 25 December 1990 by the Ministers of Foreign Affairs of Bahrain, Qatar and Saudi Arabia, p. 114(3), 119–120(20), 121(24, 25, 26), 122(28, 29, 30), 123(32), 124–125(37), 125(38, 40), 126(41) Pact of the League of Arab States, p. 122(28) Principles for the Framework for Reaching a Settlement adopted by Qatar, Bahrain and Saudi Arabia of March 1983, p. 116(16), 116–117(17), 124(37)

Inter(national) legal British Decision of 23 December 1947 regarding the line dividing references the sea-bed of Qatar and Bahrain, p. 124(35)

Representation of Parties Qatar Agent & Counsel

H.E. Mr. Najeeb Al-Nauimi, Minister Legal Adviser

Legal adviser

Mr. Adel Sherbini, Legal Expert Mr. Sami Abushaikha, Legal Expert

Counsel & Advocates Mr. Jean-Pierre Quéneudec, Professor of International Law at the University of Paris I Mr. Jean Salmon, Professor at the Université libre de Bruxelles Mr. R.K.P. Shankardass, Senior Advocate, Supreme Court of India, Former President of the International Bar Association Sir Ian Sinclair, K.C.M.G., Q.C., Barrister at Law, Member of the Institute of International Law Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritus of International Law, University of London Mr. Richard Meese, Advocate, partner in Frere Chomeley, Paris Miss Nanette E. Pilkington, Advocate, Frere Chomeley, Paris Mr. David S. Sellers, Solicitor, Frere Chomeley, Paris



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

13

Bahrain Agent & Counsel

H.E. Mr. Husain Mohammed Al Baharna, Minister of State for Legal Affairs, Barrister at Law, Member of the International Law Commission of the UN

Counsel & Advocates Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus at the University of Cambridge Mr. Keith Highet, Members of the Bars of the District of Columbia and of the New York Bar Mr. E. Jiménez de Aréchaga, Professor of International Law, Law School, Catholic University, Montevideo, Uruguay Mr. Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International law, Director of the Research Center for International Law, University of Cambridge, Member of the Institute of International Law Mr. Prosper Weil, Professor emeritus, Université de droit, d’économie et de sciences sociales de Paris Counsel

Mr. Donald W. Jones, Solicitor, Trowers & Hamlins, London Mr. John H.A. McHugo, Solicitor, Trowers & Hamlins, London Mr. David Biggerstaff, Solicitor, Trowers & Hamlins, London

Section C – Jurisdiction and Admissibility (Part II) Official citation: Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 6 Date of Judgment: 15 February 1995 Authoritative text: French Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Oda, Sir Robert Jennings, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Torres Bernárdez; Registrar Valencia-Ospina. Headnotes: Jurisdiction of the Court – Paragraph 1 of 1990 Doha Minutes – Reaffirmation by the Parties of their previous commitments – Scope of commitment undertaken by the terMs. of the exchange of letters of 1987 – Work of the Tripartite Committee.

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Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Paragraph 2 of the 1990 Doha Minutes – Seisin of the Court – Arabic expression “al-tarafan” – Interpretation of the text in accordance with the ordinary meaning to be given to its terMs. in their context and in the light of the object and purpose of the Minutes – Recourse to supplementary means of interpretation to seek confirmation of the interpretation drawn from the text – Travaux préparatoires – Circumstances in which the Minutes were adopted. Links between jurisdiction and seisin – Unilateral seisin – Procedural consequences binding on the Parties. Admissibility – Judgment of 1 July 1994 – Opportunity afforded to the Parties by the Court to ensure submission to it of the entire dispute – Separate Act of Qatar – Formulation exactly describing the subject-matter of the dispute. Text of the operative paragraph(s) (p. 26, para. 50) THE COURT, (1) By 10 votes to 5, Finds that it has jurisdiction to adjudicate upon the dispute submitted to it between the State of Qatar and the State of Bahrain; IN FAVOUR: President Bedjaoui, Judges Sir Robert Jennings, Guillaume, Shahabuddeen, Aguilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Judges ad hoc Torres Bernárdez AGAINST: Vice-President Schwebel, Judges Oda, Shahabuddeen, Koroma, Judge ad hoc Valticos (2) By 10 votes to 5, Finds the Application of the State of Qatar as formulated on 30 November 1994 is admissible IN FAVOUR: President Bedjaoui, Judges Sir Robert Jennings, Guillaume, ­ guilar-Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, A Judges ad hoc Torres Bernárdez AGAINST: Vice-President Schwebel, Judges Oda, Shahabuddeen, Koroma, Judge ad hoc Valticos Declarations/Opinions Dissenting Opinion

Vice-President Schwebel, Judges Oda, Shahabuddeen and Koroma, Judge ad hoc Valticos



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

15

Sources of Law ICJ Statute

Art. 31(3), p. 8(6)

ICJ Rules of Court

Art. 31, p. 8(4)

ICJ case-law

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [I.C.J. Reports 1991, p. 50], p. 8(4)  [I.C.J. Reports 1992, p. 237], p. 8(5)  [I.C.J. Reports 1994, p. 112], p. 9(9) Judgment of 1 July 1994, p. 14(23, 24)  [I.C.J. Reports 1994, pp. 126–127 (41.1 and 41. 2)], p. 15(24) Territorial Dispute (Libya/Chad), [I.C.J. Reports 1994, pp. 21–22 (41)], p. 18(33), 21

Treaties

Vienna Convention on the Law of Treaties, p. 18(33) Agreement of December 1987, p. 8(1), 9(12) 12(16), 14(24), 15(24) (25), 16(27)(28)(29), 24 Agreement of December 1990, p. 8(1), 9(12)12(16), 14(24), 15(24) (25), 16(29),17(31), 19(35), 20(38), 21(41), 24(44) Principles for the Framework for Reaching a Settlement of 1983, p. 16(29), 24(46)

Others

Qatar – Act to comply with paragraph (3) and (4) of operative paragraph 41 of the Judgment of the Court dated 1 July 1994 filed on 30 November 1994, p. 9(12), 10(13), 14(22), Report of the State of Bahrain to the International Court of Justice on the attempt by the Parties to implement the Court’s Judgment of 1st July 1994, p. 10(13), 14(22)

Representation of Parties Bahrain Agent & Counsel

H.E. Mr. Najeeb Al-Nauimi, Minister Legal Adviser

Legal Advisers

Mr. Adel Sherbini, Legal Expert Mr. Sami Abushaikha, Legal Expert

Counsel & Advocates

Mr. Jean-Pierre Quéneudec, Professor of International Law at the University of Paris I Mr. Jean Salmon, Professor at the Université libre de Bruxelles

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Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Bahrain (cont.) Mr. R.K.P. Shankardass, Senior Advocate, Supreme Court of India, Former President of the International Bar Association Sir Ian Sinclair, K.C.M.G., Q.C., Barrister at Law, Member of the Institute of International Law Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritus of International Law at the University of London Mr. Richard Meese, Advocate, partner in Frere Chomeley, Paris Miss Nanette E. Pilkington, Advocate, Frere Chomeley, Paris Mr. David S. Sellers, Solicitor, Frere Chomeley, Paris

Bahrain Agent

H.E. Mr. Husain Mohammed Al Baharna, Minister of State for Legal Affairs, Barrister at Law, Member of the International Law Commission of the United Nations

Counsel & Advocates

Mr. Derek W. Bowett, C.B.E., Q.C., L.L.D., Whewell Professor of International law at the University of Cambridge Mr. Keith Highet, Members of the Bars of the District of Columbia and of the New York Bar Mr. E. Jiménez de Aréchaga, Professor of International Law in the Faculty of Law of the University of Montevideo Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International law, Director of the Research Center for International Law, University of Cambridge, Member of the Institute of International Law Mr. Prosper Weil, Professor emeritus at the Université de droit, d’économie et de sciences sociales de Paris

Counsel

Mr. Donald W. Jones, Solicitor, Trowers & Hamlins, London Mr. John H.A. McHugo, Solicitor, Trowers & Hamlins, London Mr. David Biggerstaff, Solicitor, Trowers & Hamlins, London



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

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Section D – Merits Official citation: Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 40 Date of Judgment: 16 March 2001 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Torres Bernárdez, Fortier; Registrar Couvreur Headnotes: Territorial dispute – The Parties’ claims. Geographical setting – Historical context – States formerly protected by Great Britain – Good offices of the King of Saudi Arabia – “Bahraini formula”-Doha “Minutes”. Zubarah -Content and significance of the Agreements concluded on 6 and 12 September 1868 between the British Government and the Chiefs of Bahrain and Qatar respectively – Lack of direct acts of authority by Bahrain – Irrelevance of ties of allegiance between the Naim tribe and the Ruler of Bahrain – Recognition of Qatari sovereignty by the British and the Ottomans – The un-ratified Anglo-Ottoman Convention of 29 July 1913 and the Anglo-Ottoman Treaty of 9 March 1914 – Position of the British Government – Acts of authority by the Ruler of Qatar – Events of 1937. Hawar Islands – “Bahraini formula” – Nature and legal significance of the British decision of 11 July 1939 – Validity of the decision – Parties’ consent to the process – Absence of procedural violations – Lack of reasons – Opposability – Significance of official protests by Qatar – No need for the Court to rule on original title, geographical proximity, territorial unity, effectivités, or the principle of uti possidetis juris. Janan and Hadd Janan – No definition of the Hawar Islands in the British decision of 11 July 1939 – Lists produced by Bahrain in 1936, 1937, 1938 and 1946 – Letters sent on 23 December 1947 to the Rulers of Qatar and Bahrain by the British Government Authoritative interpretation of the British decision of 11 July 1939. Request for the drawing of a single maritime boundary – Delimitation of various jurisdictions – Delimitation of the territorial sea of two States with opposite coasts – Delimitation of the continental shelf and the exclusive economic zone of two States with coasts comparable to adjacent coasts. Law applicable to the delimitation – 1958 Convention on the Territorial Sea and the Contiguous Zone – 1982 United Nations Convention on the Law of the Sea – Customary international law.

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Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Method consisting of provisionally drawing an equidistance line and adjusting it to take account of special circumstances or to obtain an equitable result. Determination of baselines and basepoints – Relevant coasts – Relevant baselines – Low-water line and straight baselines – Claim to status of an archipelagic State – Finality of the Judgment. Fasht al Azm – Part of island or low-tide elevation. Qit’at Jaradah – Island status – Acts performed à titre de souverain – Construction of navigational aids. Fasht ad Dibal – Low-tide elevation – Low-tide elevations situated in the territorial sea of only one State – Low-tide elevations situated in the overlapping zone of the territorial seas of two States – Question of appropriation. Equidistance/special circumstances rule – Location and small size of an island. Equitable principles/relevant circumstances – Pearling banks – Line dividing the seabed established in 1947 by the British Government – Respective lengths of the relevant coasts – Fasht al Jarim – Effect of this maritime feature on the delimitation. Delimitation undertaken without affecting rights of third States. Single delimitation line – Co-ordinates of that line. Waters separating the Hawar Islands from the other Bahraini Islands – Not internal waters – Right of innocent passage – Passage of Qatari vessels through Bahrain’s territorial waters. Text of the operative paragraph(s) (p. 116, para. 252) THE COURT, (1) Unanimously, Finds that the State of Qatar has sovereignty over Zubarah; (2) (a) By twelve votes to five, Finds that the State of Bahrain has sovereignty over the Hawar Islands; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc Fortier AGAINST: Judges Bedjaoui. Ranjeva, Koroma, Vereshchetin; Judge ad hoc Torres Bernárdez (b) Unanimously, Recalls that vessels of the State of Qatar enjoy in the territorial sea of Bahrain separating the Hawar Islands from the other Bahraini islands the right of innocent passage accorded by customary international law;



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

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(3) By thirteen votes to four, Finds that the State of Qatar has sovereignty over Janan Island, including Hadd Janan; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Rezek, Al-Khasavmeh, Buergenthal; Judge ad hoc Torres Bernardez AGAINST: Judges Oda, Higgins, Kooijmans; Judge ad hoc Fortier (4) By twelve votes to five, Finds that the State of Bahrain has sovereignty over the island of Qit’at Jaradah; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc Fortier; AGAINST: Judges Bedjaoui, Ranjeva, Koroma, Vereshchetin; Judge ad hoc Torres Bernárdez (5) Unanimously, Finds that the low-tide elevation of Fasht ad Dibal falls under the sovereignty of the State of Qatar; (6) By thirteen votes to four, Decides that the single maritime boundary that divides the various maritime zones of the State of Qatar and the State of Bahrain shall be drawn as indicated in paragraph 250 of the present Judgment; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Herczegh, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal ; Judge ad hoc Fortier; AGAINST: Judges Bedjaoui, Ranjeva, Koroma; Judge ad hoc Torres Bernárdez Declarations/Opinions Separate Opinion

Judge Oda

Joint Dissenting Opinion

Judges Bedjaoui, Ranjeva and Koroma

Declarations

Judges Herczegh, Vereshchetin and Higgins

Separate Opinions

Judges Parra-Aranguren, Kooijmans and Al-Khasawneh

Dissenting Opinion

Judge ad hoc Torres Bernárdez

Separate Opinion

Judge ad hoc Fortier

20

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Sources of Law ICJ Statute

Art. 31, p. 44(4) Art. 31(3), p. 45(6) Art. 40(2), p. 44(2) Art. 40(3), p. 44(2)

ICJ Rules of Court

Art. 53(2), p. 48(27) Art. 56, p. 49(30) Art. 61(4), p. 49(29) Art. 72, p. 49(29)

PCIJ case-law

Société Commerciale de Belgique, [P.C.I.J. Series A/B, No. 78, p. 160], p. 76(111) Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne, [P.C.I.J., Series B, No. 12, p. 26], p. 76(113) Legal Status of Eastern Greenland, [P.C.I.J. Series A/B No. 53, p. 46], p. 100(198)

ICJ case-law

Current case Order of 11 October 1991, p. 44(4) Order of 26 June 1992, p. 44(5) Judgment of 1 July 1994, p. 45(8, 10), 64(71), 77(115) Judgment of 15 February 1995, p. 45(11) Order of 28 April 1995, p. 45(13) Order of 1 February 1996, p. 45(13) Order of 30 October 1996, p. 46(13) Order of 30 March 1998, p. 46(19) Order of 17 February 1999, p. 46(23) Other Cases Territorial Dispute (Libya/Chad), [I.C.J. Reports 1994, pp. 21–22 (41)], p. 18(33), 21 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 586–587 (63)], p. 73(107) Arbitral Award made by the King of Spain on 23 December 1906, Honduras v. Nicaragua [I.C.J. Reports 1960, p. 192], p. 76(111) Arbitral Award of 31 July 1989, [I.C.J. Reports 1991, p. 53], p. 76(111) Gulf of Maine Case, [I.C.J. Reports 1984, p. 327(194)], p. 93(173), 95(179), 110(225) North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), [I.C.J. Reports 1969, p. 51(96)], p. 97(185), 109(219), 112(234)



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

21

Sources of Law (cont.) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 36(86)], p. 97(185) Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment [I.C.J. Reports 1993, p. 60(50)], p. 104(217), 110(227), 112(234) Continental Shelf (Libya /Malta), [I.C.J. Reports 1984, p. 48(64)], p. 109(219), 110(226), 111(233), 114(246) Treaties

1820 General Treaty of Peace of 1820 between the British Government, the Sheikhs of Ras al Khaimah, of Jourat al Kamra, of Abu Dhabi and of Zyah, Sheikh of Dubai, the Chief of Sharjah, the Sheikhs of Bahrain, the Chief of Ajman and the Chief of Umm al Qaywayn, p. 54(38) 1853 Treaty of Maritime Peace of 24 August 1853, p. 54(38) 1861 Perpetual Treaty of Peace and Friendship between British Government and the Sheikh Mahomed bin Khalifah (independent ruler of Bahrain) of 31 May 1861, p. 55(39), 66(79) 1868 Agreement between Great Britain and the new Ruler of Bahrain of 6 September 1868, p. 66(78), 67(83, 84), 69(95), 74(108) 1868 Agreement between the Sheikhs of Qatar and the Sheikh of Bahrain of 13 September 1868, p. 55(41), 56(42), 57(48), 74(108) 1880 Agreement between Lt Col Ross, British Political Resident in the Gulf, Sheikh Isa bin Ali al Khalifah, Chief of Bahrain of 22 December 1880, p. 56(44) 1892 Agreement between Sheikh Isa bin Ali, Chief of Bahrain and Lt Col Talbot, British Political Resident in Gulf of 13 March 1892, p. 56(44) 1899 Hague Convention for the Pacific Settlement of International Disputes of 29 July 1899, p. 76(113) 1907 Hague Convention of 18 October 1907, p. 76(113) 1913 Anglo-Ottoman Convention Relating to the Persian Gulf and surrounding territories of 29 July 1913, p. 57(45, 46, 47, 48), 66(80), 67(87), 68(88, 89, 90, 91), 70(99) 1914 Treaty concerning the frontiers of Aden between Ottomans and British Government of 9 March 1914, p. 57(46), 66(80), 69(95) 1916 Treaty between Great Britain and the Sheikh of Qatar of 3 November 1916, p. 57(48), 66(80)

22

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Sources of Law (cont.) 1925 Petroleum Concession between the Ruler of Bahrain and Eastern and General Syndicate Ltd of 2 December 1925, p. 58(49) 1935 Petroleum Concession between Great Britain and the Ruler of Qatar of 17 May 1935, p. 58(50), 59(53) 1950 Agreement between the Ruler of Bahrain and the Ruler of Qatar on the status of Zubarah, p. 62(62) 1958 Geneva Conventions on the Law of the Sea of 29 April 1958, p. 91(167), 94(176), 99(195), 100(201), 102(208), 103(210) 1971 Exchange of Notes between UK and Bahrain of 15 August 1971, p. 62(66), 73(106) 1971 Exchange of Notes between UK and Qatar of 3 September 1971, p. 62(66), 73(106) 1982 UN Convention on the Law of the Sea of 10 December 1982, p. 91(167), 93(175), 94(176), 96(181, 182, 183), 97(184, 185), 99(195), 100(201), 102(208), 103(210, 214) 1983 Principles for the Framework for Reaching a Settlement of 1983, p. 16(29), 24(46) 1983 Principles for the Framework for Reaching a Settlement between UK, Bahrain and Qatar of March 1983, p. 62(66) 1987 Exchange of Letters of December 1987, p. 44(1), 45(8), 63(67, 68, 69), 64(71), 1990 Agreement of 25 December 1990, p. 44(1), 45(8), 64(71), 91(168) Others

1947 Decision of Great Britain 23 December 1947, p. 49(31), 90(162), 113(237) 1939 Decision of Great Britain of 11 July 1939, p. 72(103, 104), 73(106), 75(110), 76(111, 113), 77(114, 115, 116, 117), 81(132), 82(135, 136), 83(137, 139, 140), 84(142, 143, 144, 145), 85(146, 148), 86(153), 88(156, 158), 89(160), 90(163, 164, 165) Islands of Palmas Case, UN, Reports of International Arbitral Awards, vol. II, p. 869, p. 70(100) 1928 Status of Certain Groups of Islands in the Persian Gulf – Official British Report of the India Office, p. 75(109) 1981 Arbitral Award by the Court of Arbitration in the Dubai/ Sharjah Border of 19 October 1981 – International Law Reports, vol. 91, p. 579, p. 76(112), 77(113, 117)



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

23

Sources of Law (cont.) 1958 Report by Mr. Georges Scelle, Special Rapporteur of the Commission, Document A/CN.4/113 of 6 March 1958, Yearbook of International Law Commission, 1958, vol. II, p. 2, p. 77(113) 1992 Decree of Qatar of 16 April 1992, p. 93(172) 1993 Decree of Bahrain of 20 April 1993, p. 93(172) 1982 Circular of an Expert of Bahrain of March 1982, p. 98(189) Continental Shelf case (France/UK), UN Reports of International Arbitral Awards, vol. XVIII, p. 114(244), p. 115(247)

Representation of Parties Qatar Agent & Counsel

H.E. Mr. Abdullah bin Abdulatif Al-Muslemani, SecretaryGeneral of the Cabinet of the Government of the State of Qatar

Counsel

Mr. Adel Sherbini, Legal Adviser Mr. Sami Abushaikha, Legal Expert

Counsel & Advocates

Mr. Eric David, Professor of International Law, Université libre de Bruxelles. Mr. Ali bin Fetais Al-Meri, Director of Legal Department, Diwan Amiri, Mr. Jean-Pierre Quéneudec, Professor of International Law at the University of Paris I Mr. Jean Salmon, Professor at the Université libre de Bruxelles Mr. R.K.P. Shankardass, Senior Advocate, Supreme Court of India, Former President of the International Bar Association Sir Ian Sinclair, K.C.M.G., Q.C., Barrister at Law, Member of the Institute of International Law Sir Francis Vallat, G.B.E., K.C.M.G., Q.C., Professor emeritus of International Law at the University of London Mr. Rodman R. Biundy, avocat à la Cour d’appel de Paris, Member of the New York Bar, Frere Cholmeley/Eversheds, Paris, Ms. Nanette E. Pilkington, avocat à la Cour d’appel de Paris, Frere Cholmeley/Eversheds, Paris,

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Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Qatar (cont.) Counsel

Ms. Cheryl Dunn, Member of the State Bar of California, Frere Cholmeley/Eversheds, Paris, Ms. Ines Sabine Wilk, Rechtsanwalt before the Court of Appeal, Member of the Chamber of Lawyers of Berlin,

Experts

Mr. Scott B. Edmonds, Director of Cartographic Operations, MapQuest.com, Columbia, Maryland (United States of America), Mr. Robert C. Rizzutti, Project Manager, MapQuest.com, Columbia, Maryland (United States of America), Ms. Stephanie K. Clark, Senior Cartographer, MapQuest.com, Columbia, Maryland (United States of America)

Observers

H.E. Sheikh Hamad bin Jassim bin Jabor Al-Thani, Minister for Foreign Affairs of the State of Qatar, H.E. Mr. Ahmed bin Abdullah Al-Mahmoud, Minister of State for Foreign Affairs of the State of Qatar,

Bahrain Agent Counsel & Advocates

H.E. Mr. Jawad Salim Al-Arayed, Minister of State of the State of Bahrain, Mr. Fathi Kemicha, Kemicha &Associés (Tunis), avocat à la Cour d’appel de Paris, Sir Elihu Lauterpacht, Q.C., C.B.E., Honorary Professor of the University of Cambridge, Member of the Institut de droit international, Mr. Jan Paulssori, Freshfields, Paris, avocat a la Cour d’appel de Paris, Member of the District of Columbia Bar (United States of America), Mr. Michael Reisman, Myres S. McDougal Professor of International Law of Yale Law School, Member of the Bar of Connecticut, associé de l’Institut de droit international, Mr. Robert Volterra, Freshfields, London, Member of the Bar of Upper Canada, Mr. Prosper Weil, Emeritus Professor at the University of Paris II (Panthéon-Assas), Member of the Académie des sciences morales et politiques (Institut de France), Member of the Institut de droit international,



Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

25

Bahrain (cont.) Advisers

Sheikh Khalid biri Ahmed Al-Khalifa, First Secretary, Ministry of Foreign Affairs of the State of Bahrain, Commander Christopher Carleton, M.B.E., Head of the Law of the Sea Division of the United Kingdom Hydrographic Office, Mr. Hongwu Chen, Freshfields, Paris, avocat à la Cour d’appel de Paris, Member of the Beijing Bar, Mr. Graham Coop, Freshfields, Paris, Barrister and Solicitor of the High Court of New Zealand and Solicitor of the Supreme Court of England and Wales. Mr. Andrew Newcombe, Freshfields, Paris, Member of the Bar of British Columbia (Canada), Ms. Beth Olsen, Adviser, Ministry of State of the State of Bahrain, Mr. John Wilkinson, Former Reader at the University of Oxford, Emeritus Fellow, St. Hugh’s College, Oxford,

Observers

H.E. Sheikh Mohammed bin Mubarak Al Khalifa, Minister for Foreign Affairs, State of Bahrain, H.E. Sheikh Abdul-Aziz bin Mubarak Al Khalifa, Ambassador of the State of Bahrain to the Netherlands, H.E. Mr. Mohammed Jaber Al-Ansari, Adviser to His Highness, the Amir of Bahrain, Mr. Ghazi Al-Gosaibi, Under-Secretary of Foreign Affairs, State of Bahrain, H.E. Sheikha Haya Al Khalifa, Ambassador of the State of Bahrain in France, Mr. Yousef Mahmood, Director of the Office of the Foreign Minister, State of Bahrain,

Administrative Staff

Mr. Jon Addison, Ministry of State of the State of Bahrain, Ms. Maisoon Al-Airayed, Ministry of State of the State of Bahrain, Ms. Alia Al-Khatar, Freshfields, Mr. Nabeel Al-Ruimaihi, Ministry of State of the State of Bahrain, Mr. Hafedh Al-Qassab, Ministry of State of the State of Bahrain, Mr. Yousif Busheery, Ministry of Foreign Affairs of the State of Bahrain,

26

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Bahrain (cont.) Ms. Janet Cooper, Ministry of State of the State of Bahrain, Ms. Eleonore Gleitz, Freshfields, Ms. Aneesa Hanna, Embassy of Bahrain in the United Kingdom, Ms. Jeanette Harding, Ministry of State of the State of Bahrain, Ms. Vanessa Harris, Freshfields, Ms. Iva Kratchanova, Ministry of State of the State of Bahrain, Ms. Sonja Knijnsberg, Freshfields, Ms. Sarah Mochen, Freshfields, Mr. Kevin Mottram, Freshfields, Mr. Yasser Shaheen, Second Secretary, Ministry of Foreign Affairs of the State of Bahrain,

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971 MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (Libya v. United Kingdom) General List No.: 88 Mean(s) and date of institution of the case: Application (3 March 1992) Statement of Claim/Question: Libya asks the Court to adjudge and declare: “(a) that Libya has fully complied with all of its obligations under the Montreal Convention; (b) that the United Kingdom has breached, and is continuing to breach, its legal obligations to Libya under Articles 5(2), 5(3), 7, 8(2) and 11 of the Montreal Convention; and (c) that the United Kingdom is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force or threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya”; Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute, Article 14(1) Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (signed at Montreal) of 23 September 1971, p. 4(1) Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

3 March 1992 to 10 September 2003 (11 years / 5 months / 7 days)

Provisional measures

3 March 1992 to 14 April 1992 (1 month / 11 days)

26 and 28 March 1992

Preliminary objection

16 June 1995 to 27 February 1998 (2 years / 8 months / 11 days)

13–22 October 1997

Lockerbie (Libya v. United Kingdom)

28 Orders

Date of Order and Authority

Content

14 April 1992 Court – Vice-President (Acting President) Oda

Please refer Section B

19 June 1992 Court – Vice President (Acting President) Oda

Fixing of time-limits: 20 December 1993 – Memorial of Libya 20 June 1995 – Counter-Memorial of the United Kingdom

22 September 1995 Court – President Bedjaoui

Fixing of time-limit to file written statement of observations on preliminary objection of UK 22 December 1995 – Libya The Court by ten votes to three decided that in the present phase relating to jurisdiction and admissibility in the two cases, (i) The United Kingdom and the United States were not parties in the same interest within the meaning of Article 31, para. 5 of the Statue (ii) the choice of a judge ad hoc by the United Kingdom was therefore justified in the current phase of the proceedings in the present case Sir Robert Jennings would sit on the Bench for the purpose of the oral proceedings and would take part in the deliberations by the Court in that phase of the Case

30 March 1998 Court – Vice-President (Acting President) Weeramantry

Fixing of time-limits: 30 December 1998 – Counter-Memorial of the UK

17 December 1998 Senior Judge (Acting President) Oda

Extension of time-limits: From 30 December 1998 to 31 March 1999 – Counter-

29 June 1999 Court – Vice-President (Acting President) Weeramantry

Authorisation for filing of a Reply and Rejoinder and fixing of time-limits: 29 June 2000 – Reply of Libya

6 September 2000 Court – President Guillaume

Fixing of time-limits: 3 August 2001 – Rejoinder of the UK

10 September 2003 President Shi

Discontinuation of the proceedings and removal of the case

Lockerbie (Libya v. United Kingdom)



29

Request for extension of time-limits State Party

Remarks

UK (1 time)

Invites the Court to consider a possible suspension or prolongation for a fixed period to file Rejoinder – Objection by Libya

Section B – Provisional Measures Official citation: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 3 Date of Order: 14 April 1992 Authoritative text: English Composition of the Court: Vice-President Oda (Acting President); President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarrasov, Guillaume, Shahabuddeen, Aguilar, Mawdsley, Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-Kosheri; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 15, para. 43) THE COURT, By eleven votes to five, Finds that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. IN FAVOUR: Vice-President Oda, Acting President; President Sir Robert Jennings, Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley AGAINST: Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad-hoc El-Kosheri

30

Lockerbie (Libya v. United Kingdom)

Declarations/Opinions Declaration

Vice-President (Acting President) Oda and Judge Ni

Joint declaration

Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley

Separate Opinion

Judges Lachs and Shahabuddeen

Dissenting Opinion

Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-Kosheri

Sources of Law UN Charter

Art. 25, p. 14(37), 15(39) Art. 103, p. 14(37), 15(39) Chapter VII, p. 13(32) UN Charter, p. 11–12(29)

ICJ Statute

Art. 31(2), p. 8(15) Art. 34(3), p. 8(14) Art. 36(1), p. 4(1) Art. 40(2), p. 8(12) Art. 40(3), p. 8(13) Art. 41, p. 3, 7(8), 14(38), 15(43) Art. 48, p. 3 Art. 63, p. 8(14)

ICJ Rules of Court

Art. 38(4), p. 8(12) Art. 42, p. 8(13) Art. 43, p. 8(14) Art. 61(4), p. 9(18) Art. 62, p. 14(34) Art. 69(3), p. 8(14) Art. 73, p. 3, 7(8) Art. 73(2), p. 8(12) Art. 74, p. 3, 7(8) Art. 74(3), p. 8(16), 9(18) Art. 74(4), p. 7(8), 8–9(17) Art. 75, p. 7(8)

UN Security Council Resolutions

731(1992) of 21 January 1992, p. 11–12(29), 13(32)

Treaties

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) of 23 September 1971, p. 4, 4(1, 3, 4), 5(5), 6(6, 7), 7(9, 10), 8(14), 9(20), 10(21, 22, 24), 14(36), 15(40)

Declaration

Joint Declaration of the UK and the USA of 27 November 1991, p. 11(28)

UN Documents

SC document S/23306, 23309, 23307, 23308, 23317, p. 11–12(29),

748(1992) of 31 March 1992, p. 13(32, 33), 14(34, 35, 37), 15(39, 40)

SC document S/23306, S/23308 and S/23309, p. 12–13(32) SC document S/23308, p. 13(33)



Lockerbie (Libya v. United Kingdom)

31

Section C – Preliminary Objections Official citation: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9 Date of Judgment: 22 February 1998 Authoritative text: English Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Sir Robert Jennings, El-Kosheri; Registrar Valencia-Ospina Headnotes: Objection to jurisdiction – Montreal Convention of 23 September 1971 – Treaty in force between the Parties – Article 14, paragraph 1, of the Convention. Grounds for lack of jurisdiction invoked in the provisional measures phase – Arguments not reiterated in the present phase of the proceedings – Necessity for the Court nonetheless to deal with those arguments – Negotiations – Request for arbitration – Six-month period before the Court can be seised. Contention that no legal dispute exists concerning the interpretation and application of the Montreal Convention – Dispute of a general nature as to the legal régime applicable to the destruction of the Pan Am aircraft over Lockerbie – Specific disputes concerning the interpretation and application of Article 7 of the Convention, read in conjunction with Articles 1, 5, 6 and 8, and the interpretation and application of Article 11 of the Convention. Contention that it is not for the Court to decide on the lawfulness of actions instituted by the Respondent to secure the surrender of the two alleged ­offenders – Jurisdiction of the Court to decide on the lawfulness of those actions in so far as they would be at variance with the provisions of the Montreal ­Convention. Security Council resolution 748(1992) and 883(1993) – Adoption after filing of the Application – Jurisdiction to be determined at the date of filing of the Application. Objection to admissibility – Contention that Security Council resolutions 748(1992) and 883(1993) created legal obligations for the Parties which are determinative of any dispute submitted to the Court – Admissibility to be determined at the date of filing of the Application – Adoption of the resolutions after the filing of the Application. Contention that those resolutions rendered the Applicant’s claims without object – Objection to the Court proceeding to judgment on the merits – ­Article 79, paragraph 1, of the Rules of Court – “Preliminary” Objection – Formal

32

Lockerbie (Libya v. United Kingdom)

conditions for presentation – Article 79, paragraph 7, of the Rules of Court – 1972 Revision – Objection which is “not exclusively” preliminary containing “both preliminary aspects and other aspects relating to the merits” – Rights on the merits constituting the very subject-matter of a decision on the objection. Fixing of time-limits for the further proceedings. Text of the operative paragraph(s) (p. 29, para. 53) THE COURT, (1) (a) By thirteen votes to three, Rejects the objection to jurisdiction raised by the United Kingdom on the basis of the alleged absence of a dispute between the Parties concerning the interpretation or application of the Montreal Convention of 23 September 1971; IN FAVOUR: Vice-President (Acting President) Weeramantry: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel, Judge: Oda, Judge ad hoc Sir Robert Jennings (b) By thirteen votes to three, Finds that it has jurisdiction, on the basis of Article 14, paragraph 1, of the Montreal Convention of 23 September 1971, to hear the disputes between Libya and the United Kingdom as to the interpretation or application of the provisions of that Convention IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel, Judge: Oda, Judge ad hoc Sir Robert Jennings 2 (a) By twelve votes to four, Rejects the objection to admissibility derived by the United Kingdom from Security Council resolutions 748(1992) and 883(1993); IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra­Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel, Judges Oda, Herczegh, Judge ad hoc Sir Robert Jennings (b) By twelve votes to four, Finds that the Application filed by Libya on 3 March 1992 is admissible

Lockerbie (Libya v. United Kingdom)



33

IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra­Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel, Judges Oda, Herczegh, Judge ad hoc Sir Robert Jennings (3) By ten votes to six, Declares that the objection raised by the United Kingdom according to which Security Council resolutions 748(1992) and 883(1993) have rendered the claim of Libya without object does not, in the circumstances of the case, have an exclusively preliminary character IN FAVOUR: Vice-President (Acting President) Weeramantry, Judges Bedjaoui, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel, Judges Oda, Guillaume, Herczegh, Fleischhauer, Judge ad hoc Sir Robert Jennings Declarations/Opinions Joint declaration

Judges Bedjaoui, Guillaume and Ranjeva; Judges Bejaoui, Ranjeva and Koroma; Judges Guillaume and Fleischhauer;

Declaration

Judge Herczegh

Separate Opinion

Judges Kooijmans and Rezek

Dissenting Opinion

President Schwebel, Judge Oda, Judge ad hoc Sir Robert Jennings

Sources of Law UN Charter

Art. 25, p. 23(37), 28–29(50) Art. 103, p. 23(37), 24(41), 28–29(50) Chapter VII, p. 25(43) UN Charter, p. 23(34), 25(42)

ICJ Statute

Art. 24(1), p. 13(9) Art. 31, p. 13(9) Art. 31(1), p. 13(9) Art. 31(2), p. 12(4) Art. 31(5), p. 13(9) Art. 34(3), p. 12(3), 12(8) Art. 40(2), p. 12(2) Art. 40(3), p. 12(2) Art. 41, p. 12(5) Art. 63(1), p. 12(3)

34

Lockerbie (Libya v. United Kingdom)

Sources of Law (cont.) ICJ Rules of Court

Art. 13(1), p. 13(10) Art. 32(1), p. 13(10) Art. 35(3), p. 13(9) Art. 37, p. 13(9) Art. 43, p. 12(3) Art. 53(2), p. 13(11) Art. 69(2), p. 12(8) Art. 69(3), p. 12(3) Art. 79, p. 26(47), 27(48), 28–29(50) Art. 79(1), p. 26(47) Art. 79(7), p. 27(48, 49), 29(52)

PCIJ case-law

Mavrommatis Palestine Concessions, 1924, [P.C.I.J., Series A, No. 2, p. 11], p. 17(22) Panevezys-Saldutiskis Railway, Judgment, 1939, [P.C.I.J., Series A/B, No. 76, p. 16], p. 26–27(47)  [P.C.I.J., Series A/B, No. 75, p. 56], p. 27–28(49) Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, [P.C.I.J., Series A, No. 6, p. 15], p. 28–29(50) Pajzs, Csáky, Esterházy, Order of 23 May 1936, [P.C.I.J., Series A/B, No. 66, p. 9], p. 28–29(50)

ICJ case-law

Current Order of 14 April 1992, p. 12(5) Order of 22 September 1995, p. 12(7) Previous East Timor, [I.C.J. Reports 1995, p. 100], p. 17(22) South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), I.C.J. Reports 1962, p. 328], p. 17(22) Interpretation of Peace Treaties (First phase), [I.C.J. Report 1950, p. 74], p. 17(22) Nottebohm, [I.C.J. Report 1953, p. 122], p. 23–24(38) Right of Passage over Indian Territory, [I.C.J. Reports 1957, p. 142], p. 23–24(38) Border and Tranborder Armed Actions (Nicaragua v. Honduras), [I.C.J. Reports 1988, p. 95(66)], p. 25(42), 26(46) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 272, p. 62], p. 26(46) Northern Cameroons (Cameroon v. United Kingdom), [I.C.J. Reports 1963, p. 38], p. 26(46) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 425–426]



Lockerbie (Libya v. United Kingdom)

35

Sources of Law (cont.) ICJ case-law (cont.)

[I.C.J. Reports 1986, p. 29–31], p. 27(49) Barcelona Traction (Second phase), [I.C.J. Reports 1970, p. 3], p. 27–28(49) [I.C.J. Reports 1970, p. 46], p. 28–29(50)

UN Security Council Resolutions

731(1992) of 21 January 1992, p. 17(21), 24(41), 25(42), 26(44) 748(1992) of 31 March 1992, p. 23(37, 38), 24(41), 25(42, 43), 26(44, 45), 27(48), 28(50) 883(1993) of 11 November 1993, p. 23(37, 38), 24(41), 25(42, 43), 26(44, 45), 27(48), 28(50)

Treaties

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) of 23 September 1971, p. 11(1), 14(13, 14), 16(18, 19, 20), 17(21), 18(23, 24, 25, 26), p. 19(27, 28), 21(29), 22(30, 31, 32, 33), 23(34, 35, 36, 37), 24(41)

Representation of Parties Libya Agent

H.E. Mr. Hamed Ahmed Elhouderi, Ambassador, Secretary of the People’s Office of the Great Socialist People’s Libyan Arab Jamahiriya to the Netherlands

Counsel

Mr. Mohamed A. Aljady Mr. Abdulhamid Raeid

Counsel and Advocates

Mr. Abdelrazeg El-Murtadi Suleiman, Professor of Public International Law, Faculty of Law, University of Benghazi Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public International Law, University of Oxford Mr. Jean Salmon, Professor of Law emeritus, Université libre de Bruxelles Mr. Eric Suy, Professor of International Law, Catholic University of Louvain (K.U. Leuven) Mr. Eric David, Professor of Law, Universite libre de Bruxelles

Advisers

Mr. Nicolas Angelet, Principal Assistant, Faculty of Law, Catholic University of Louvain (K.U. Leuven) Mrs. Barbara Delcourt, Assistant, Faculty of Social, Political and Economic Sciences, Université libre de Bruxelles; Research Fellow, Centre of International Law and Institute of European Studies, Université libre de Bruxelles Mr. Mohamed Awad

36

Lockerbie (Libya v. United Kingdom)

United Kingdom Agent

Sir Franklin Berman, K.C.M.G., Q.C., Legal Adviser to the Foreign and Commonwealth Office

Counsel

The Right Honourable the Lord Hardie, Q.C., The Lord Advocate for Scotland Mr. Christopher Greenwood, Barrister, Professor of International Law at the London School of Economics Mr. Daniel Bethlehem, Barrister, London School of Economics

Deputy agent

Mr. Anthony Aust, C.M.G.

Advisers

Mr. Patrick Layden, T.D. Mr. Norman McFayden Ms. Sarah Moore Ms. Susan Hulton

Secretary

Ms. Margaret McKie

CASE CONCERNING QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971 MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT AT LOCKERBIE (Libya v. USA) General List No.: 89 Mean(s) and date of institution of the case: Application (3 March 1992) Statement of Claim/Question: Libya asks the Court to adjudge and declare: “Accordingly, while reserving the right to supplement and amend this submission as appropriate in the course of further proceedings, Libya requests the Court to adjudge and declare as follows: (a) that Libya has fully complied with all of its obligations under the Montreal Convention; (b) that the United States has breached, and is continuing to breach, its legal obligations to Libya under Articles 5(2), 5(3), 7, 8(2) and 11 of the Montreal Convention; and (c) that the United States is under a legal obligation immediately to cease and desist from such breaches and from the use of any and all force or threats against Libya, including the threat of force against Libya, and from all violations of the sovereignty, territorial integrity, and the political independence of Libya”; Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute, Article 14(1) Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) of 23 September 1971 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total Provisional measures Preliminary objection

Public sittings

3 March 1992 to 10 September 2003 (11 years / 5 months / 7 days) 3 March 1992 to 14 April 1992 26 and 28 march 1992 (1 month / 11 days) 16 June 1995 to 27 February 1998 13–22 October 1997 (2 years / 8 months / 11 days)

Lockerbie (Libya v. USA)

38 Orders Date of Order and Authority

Content

14 April 1992 Court – Vice-President (Acting President) Oda

Please refer Section B

19 June 1992 Court – Vice President (Acting President) Oda

Fixing of time-limits: 20 December 1993 – Memorial of Libya 20 June 1995 – Counter-Memorial of the USA

22 September 1995 Court – President Bedjaoui

Fixing of time-limit to file written statement of observations on preliminary objection of USA 22 December 1995 – Libya

30 March 1998 Court – Vice-President (Acting President) Weeramantry

Fixing of time-limits: 30 December 1998 – Counter-Memorial of the USA

17 December 1998 Senior Judge (Acting President) Oda

Extension of time-limits: From 30 December 1998 to 31 March 1999 – CounterMemorial of the USA

29 June 1999 Court – Vice-President (Acting President) Weeramantry

Authorisation for filing of a Reply and Rejoinder and fixing of time-limits: 29 June 2000 – Reply of Libya

6 September 2000 Court – President Guillaume

Fixing of time-limits: 3 August 2001 – Rejoinder of the USA

10 September 2003 President Shi

Discontinuation of the proceedings and removal of the case

Request for extension of time-limits State Party

Remarks

USA (1 time)

Invites the Court to consider a possible suspension or prolongation for a fixed period to file Rejoinder – Objection by Libya

Section B – Provisional Measures Official citation: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 114 Date of order: 14 April 1992

Lockerbie (Libya v. USA)



39

Authoritative text: English Composition of the Court: Vice-President Oda (Acting President); President Sir Robert Jennings; Judges Lachs, Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarrasov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola; Judge ad hoc El-Kosheri; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 15, para. 43) THE COURT, By eleven votes to five, Finds that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. IN FAVOUR: Vice-President Oda, Acting President; President Sir Robert Jennings, Judges Lachs, Ago, Schwebel, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley AGAINST: Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola; Judge ad-hoc El-Kosheri Declarations/Opinions Declaration

Vice-President (Acting President) Oda and Judge Ni

Joint declaration

Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley

Separate Opinion

Judges Lachs and Shahabuddeen

Dissenting Opinion

Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-Kosheri

Sources of Law UN Charter

Art. 25, p. 126(42) Art. 103, p. 126(43) Chapter VII, p. 126(39) UN Charter, p. 123(31)

ICJ Statute

Art. 31(2), p. 120(16) Art. 36(1), p. 115(1) Art. 40(2), p. 119(12) Art. 40(3), p. 119(13) Art. 41, p. 114, 126(41), 127(46) Art. 48, p. 114 Art. 63, p. 119(15)

Lockerbie (Libya v. USA)

40 Sources of Law (cont.) ICJ Rules of Court

Art. 38(4), p. 119(12) Art. 42, p. 119(13) Art. 43, p. 119(15) Art. 61(4), p. 120(19) Art. 62, p. 125(37) Art. 69(3), p. 119(15) Art. 73, p. 114, 118(8) Art. 73(2), p. 119(13) Art. 74, p. 114, 118(8) Art. 74(3), p. 120(17), 120(19) Art. 74(4), p. 119(14), 8–9(17) Art. 75, p. 118(8)

UN Security Council Resolutions

731(1992) of 21 January 1992, p. 123(31), 124(34)

Treaties

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (signed at Montreal) of 23 September 1971, p. 115(1, 2, 3, 4), 116(5), 117(6, 7), 118(9, 10), 119(15), 121(22), 122(25, 27)

Declaration

Joint Declaration of the UK and the USA of 27 November 1991, p. 122(30)

UN Documents

SC document S/23306, 23309, 23307, 23308, 23317, p. 123(31), 125(35)

748(1992) of 31 March 1992, p. 124(34), 125(35, 37, 38), 126(40, 42, 43), 127(44)

SC document S/23308, p. 125(35)

Section C – Preliminary Objections Official citation: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 115 Date of Judgment: 22 February 1998 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Sir Robert Jennings, El-Kosheri; Registrar Valencia-Ospina



Lockerbie (Libya v. USA)

41

Headnotes: Objection to jurisdiction – Montreal Convention of 23 September 1971 – Treaty in force between the Parties – Article 14, paragraph 1, of the Convention. Grounds for lack of jurisdiction invoked in the provisional measures phase – Arguments repeated in passing in the present phase of the proceedings – ­Negotiations – Request for arbitration – Six-month period before the Court can be seised. Contention that no legal dispute exists concerning the interpretation and application of the Montreal Convention – Dispute of a general nature as to the legal régime applicable to the destruction of the Pan Am aircraft over ­Lockerbie – Specific disputes concerning the interpretation and application of Article 7 of the Convention, read in conjunction with Articles 1, 5, 6 and 8, and the interpretation and application of Article 11 of the Convention. Contention that it is not for the Court to decide on the lawfulness of actions instituted by the Respondent to secure the surrender of the two alleged ­offenders – Jurisdiction of the Court to decide on the lawfulness of those actions in so far as they would be at variance with the provisions of the Montreal Convention. Security Council resolution 748 (1992) and 883(1993) – Adoption after filing of the Application – Jurisdiction to be determined at the date of filing of the Application. Objection to admissibility – Contention that the dispute between the Parties is governed by Security Council resolutions 748(1992) and 883(1993) and not the Montreal Convention – Admissibility to be determined at the date of filing of the Application – Adoption of the resolutions after the filing of the Application. Objection to the Court proceeding to judgment on the merits – Contention that the Applicant’s claims have become moot because Security Council resolutions 748(1992) and 883(1993) have rendered them without object – Article 79, paragraph 1, of the Rules of Court – “Preliminary” Objection – Formal conditions for presentation – Article 79, paragraph 7, of the Rules of Court – 1972 Revision – Objection which is “not exclusively” preliminary containing “both preliminary aspects and other aspects relating to the merits” – Rights on the merits constituting the very subject-matter of a decision on the objection. Request submitted in the alternative that the Court should “resolve the case in substance now” – By raising preliminary objections, the Respondent has made a procedural choice the effect of which, according to the express terms of Article 79, paragraph 3, is to suspend the proceedings on the merits. Fixing of time-limits for the further proceedings.

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Text of the operative paragraph(s) (p. 135, para. 53) THE COURT, (1) (a) By thirteen votes to two, Rejects the objection to jurisdiction raised by the United States on the basis of the alleged absence of a dispute between the Parties concerning the interpretation or application of the Montreal Convention of 23 September 1971; IN FAVOUR: Vice-President (Acting President) Weeramantry: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel; Judge: Oda (b) By thirteen votes to two, Finds that it has jurisdiction, on the basis of Article 14, paragraph 1, of the Montreal Convention of 23 September 1971, to hear the disputes between Libya and the United States as to the interpretation or application of the provisions of that Convention IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel; Judge: Oda 2 (a) By twelve votes to three, Rejects the objection to admissibility derived by the United States from Security Council resolutions 748 (1992) and 883 (1993); IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra­Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel; Judges Oda, Herczegh (b) By twelve votes to three, Finds that the Application filed by Libya on 3 March 1992 is admissible IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra­Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel; Judges Oda, Herczegh

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43

(3) By ten votes to five, Declares that the objection raised by the United States according to which the claims of Libya became moot Security Council resolutions 748(1992) and 883(1993) rendered them without object, does not, in the circumstances of the case, have an exclusively preliminary character IN FAVOUR: Vice-President (Acting President) Weeramantry:, Judges Bedjaoui, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek, Judge ad hoc El-Kosheri AGAINST: President Schwebel; Judges Oda, Guillaume, Herczegh, ­Fleischhauer Declarations/Opinions Joint declaration

Judges Bedjaoui, Guillaume and Ranjeva; Judges Guillaume and Fleischhauer;

Declaration

Judge Herczegh

Separate Opinion

Judges Kooijmans and Rezek

Dissenting Opinion

President Schwebel, Judge Oda

Sources of Law UN Charter

Art. 25, p. 128(36), 133–134(49) Art. 103, p. 128(36), 133–134(49) Chapter VII, p. 129(39), 130(42) UN Charter, p. 130(41)

ICJ Statute

Art. 31(2), p. 118(4) Art. 34(3), p. 118(3, 8) Art. 40(2), p. 118(2) Art. 40(3), p. 118(2) Art. 41, p. 118(5) Art. 63(1), p. 118(3)

ICJ Rules of Court

Art. 13(1), p. 119(9) Art. 32(1), p. 119(9) Art. 43, p. 118(3) Art. 53(2), p. 119(10) Art. 69(2), p. 118(8) Art. 69(3), p. 118(3) Art. 79, p. 131(46), 132(46), 133–134(49), 134(51) Art. 79(1), p. 131(46) Art. 79(3), p. 118(7), 134–135(51) Art. 79(7), p. 135(52)

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Lockerbie (Libya v. USA)

Sources of Law (cont.) PCIJ case-law

Mavrommatis Palestine Concessions, 1924, [P.C.I.J., Series A, No. 2, p. 11], p. 122(21) Panevezys-Saldutiskis Railway, Judgment, 1939, [P.C.I.J., Series A/B, No. 76, p. 16], p. 131–132(46)  [P.C.I.J., Series A/B, No. 75, p. 56], p. 132–133(48) Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, [P.C.I.J., Series A, No. 6, p. 15], p. 133–134(49) Pajzs, Csáky, Esterházy, Order of 23 May 1936, [P.C.I.J., Series A/B, No. 66, p. 9], p. 133–134(49)

ICJ case-law

Current Order of 14 April 1992, p. 118(5) Order of 19 June 1992, p. 118(5) Order of 22 September 1995, p. 118(7) Previous East Timor, [I.C.J. Reports 1995, p. 100], p. 122–123(21) South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), I.C.J. Reports 1962, p. 328], p. 122–123(21) Interpretation of Peace Treaties (First phase), [I.C.J. Report 1950, p. 74], p. 122–123(21) Nottebohm, [I.C.J. Report 1953, p. 122], p. 129(37) Right of Passage over Indian Territory, [I.C.J. Reports 1957, p. 142], p. 129(37) Border and Tranborder Armed Actions (Nicaragua v. Honduras), [I.C.J. Reports 1988, p. 95(66)], p. 130(42), 131(45) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 272, p. 62], p. 131(45) Northern Cameroons (Cameroon v. United Kingdom), [I.C.J. Reports 1963, p. 38], p. 131(45) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 425–426], p. 132(48) Barcelona Traction (Second phase), [I.C.J. Reports 1970, p. 3], p. 132–133(48) [I.C.J. Reports 1970, p. 46], p. 133–134(49)

UN Security Council Resolutions

731(1992) of 21 January 1992, p. 122(20), 129(40), 130(41, 42) 748(1992) of 31 March 1992, p. 128(36), 129(37), 129(40), 130(41, 42, 43), 131(44, 45), 132(47), 133(49) 883(1993) of 11 November 1993, p. 128(36), 129(37), 129(40), 130(41, 42, 43), 131(44, 45), 132(47), 133(49)

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45

Sources of Law (cont.) Treaties

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) of 23 September 1971, p. 117(1), 119–120(13), 120(14), 121(17), 122(19), 123(22, 23, 24), 123–124(25), 124(26, 27), 127(28, 29, 30, 31), 128(32, 33, 34, 35, 36), 129(38, 40)

Representation of Parties Libya Agent

H.E. Mr. Hamed Ahmed Elhouderi, Ambassador, Secretary of the People’s Office of the Great Socialist People’s Libyan Arab Jamahiriya to the Netherlands

Counsel

Mr. Mohamed A. Aljady Mr. Abdulhamid Raeid

Counsel and Advocates

Mr. Abdelrazeg El-Murtadi Suleiman, Professor of Public International Law, Faculty of Law, University of Benghazi Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public International Law, University of Oxford Mr. Jean Salmon, Professor of Law emeritus, Université libre de Bruxelles Mr. Eric Suy, Professor of International Law, Catholic University of Louvain (K.U. Leuven) Mr. Eric David, Professor of Law, Universite libre de Bruxelles

Advisers

Mr. Nicolas Angelet, Principal Assistant, Faculty of Law, Catholic University of Louvain (K.U. Leuven) Mrs. Barbara Delcourt, Assistant, Faculty of Social, Political and Economic Sciences, Université libre de Bruxelles; Research Fellow, Centre of International Law and Institute of European Studies, Université libre de Bruxelles Mr. Mohamed Awad

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USA Agent

Mr. David R. Andrews, Legal Adviser, United States Department of State

Co-agent

Mr. John J. Matheson, Principal Deputy Legal Adviser, United States Department of State

Counsel and Advocates

Mr. John R. Crook, Assistant Legal Adviser, United States Department of State Mr. Sean D. Murphy, Counsellor for Legal Affairs, United States Embassy, The Hague Mr. Oscar Schachter, Professor at the Columbia University School of Law Ms. Elisabeth Zoller, Professor at the University of Paris II

Counsel

Mr. John J. Kim, Office of the Legal Adviser, United States Department of State Mr. Brian Murtagh, United States Department of Justice

CASE CONCERNING OIL PLATFORMS (Iran v. USA) General List No.: 90 Mean(s) and date of institution of the case: Application (2 November 1992) Statement of Claim/Question: Islamic Republic of Iran “. . . requests the Court to adjudge and declare as follows: (a) that the Court has jurisdiction under the Treaty of Amity to entertain the dispute and to rule upon the claims submitted by the Islamic Republic; (b) that in attacking and destroying the oil platforms referred to in the Application on 19 October 1987 and 18 April 1988, the United States breached its obligations to the Islamic Republic, inter alia, under Articles I and X(1) of the Treaty of Amity and international law; (c) that in adopting a patently hostile and threatening attitude towards the Islamic Republic that culminated in the attack and destruction of the Iranian oil platforms, the United States breached the object and purpose of the Treaty of Amity, including Articles I and X(1), and international law; (d) that the United States is under an obligation to make reparations to the Islamic Republic for the violation of its international legal obligations in an amount to be determined by the Court at a subsequent stage of the proceedings. The Islamic Republic reserves the right to introduce and present to the Court in due course a precise evaluation of the reparations owed by the United States; and (e) any other remedy the Court may deem appropriate.” Counter-claims of the USA The United States requests that the Court adjudge and declare: 1. That in attacking vessels, laying mines in the Gulf and otherwise engaging in military actions in 1987–1988 that were dangerous and detrimental to maritime commerce, the Islamic republic of Iran breached its obligations to the United States under Article X of the 1955 Treaty, and 2. That the Islamic republic of Iran is accordingly under an obligation to make full reparation to the United States for violating the 1955 Treaty in a form and amount to be determined by the Court at a subsequent stage of the proceedings.

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48

The United States reserves the right to introduce and present to the Court in due course a precise evaluation of the reparation owed by Iran.” Basis of jurisdiction invoked by the Applicant(s): Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran of 15 August 1955 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

2 November 1992 to 6 November 2003

Preliminary objection

16 December 1993 to 12 December 1996

Counter-claims

12 December 1996 to 18 December 1998

Merits

18 December 1998 to 6 November 2003

Public sittings

Between 16 and 24 September 1996

Orders Date of Order and Authority

Content

4 December 1992 President Sir Robert Jennings

Fixing of time-limits: 31 May 1993 – Memorial of Iran 30 November 1993 – Counter-Memorial of the USA

3 June 1993 President Sir Robert Jennings

Extension of time-limits: From 31 May to 8 June 1993 – Memorial of Iran 30 November to 16 December 1993 – CounterMemorial of the USA

18 January 1994 President Sir Robert Jennings

Fixing of time-limit to file written statement of observations on preliminary objection of USA 1 July 1994 – Iran

16 December 1996 President Bedjaoui

Fixing of time-limits: 23 June 1997 – Counter-memorial of the USA

10 March 1998 Court – Vice-President (Acting President) Weeramantry

Please refer Section C

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49

Orders (cont.) 26 May 1998 Vice-President (Acting President) Weeramantry

Extension of time-limits: From 10 September to 10 December 1998 – Reply of Iran From 23 November 1999 to 23 May 2000 – Rejoinder of the USA

8 December 1998 Court – Vice-President (Acting President) Weeramantry

Extension of time-limits: From 10 December 1998 to 10 March 1999 – Reply of Iran From 23 May to 23 November 2000 – Rejoinder of the USA

4 September 2000 President Guillaume

Extension of time-limits: From 23 November 2000 to 23 March 2001 – Rejoinder of the USA

28 August 2001 Vice-President Shi

Authorisation to Iran of an additional pleading relating solely to the US counter-claims and fixing of 24 September 2001 for the filing of the pleadings

Request for extension of time-limits State

Remarks

Iran (2 times)

1. R  equests for an extension of eight days to file its memorial – US indicates no objection on a condition that it would also receive similar extension in the date for filing of the counter-memorial 2. Request to extend filing of Reply until 10 December 1998 – No objection by the USA on the understanding that three months extension to file its Rejoinder is given 3. Request to extend filing of Reply until 10 March 1999 – No objection by the USA on the understanding that likewise extension to file its Rejoinder is given

USA (1 time)

1. Request to extend filing of Rejoinder until 23 March 2001 – No objection by Iran pointing out the right of Iran to present its views in writing a second time on the United States counter-claim, in an additional pleading

Section B – Preliminary Objections Official citation: Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 803 Date of Judgment: 12 December 1996

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Oil Platforms (Iran v. USA)

Authoritative text: French Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc Rigaux; Registrar Valencia-Ospina Headnotes: Jurisdiction of the Court – Treaty of Amity, Economic Relations and Consular Rights of 15 August 1955 – Treaty in force. Article XXI, paragraph 2 – Dispute not satisfactorily adjusted by diplomacy – Lack of agreement to settle it by “other pacific means” – Dispute “as to the interpretation of application” of the Treaty. Contention that the Treaty cannot apply to questions concerning the use of force – Lack of any provision expressly excluding certain matters from the jurisdiction of the Court – Article XX, paragraph 1(d), as a defence on the merits – Unlawfulness of actions incompatible with the obligations flowing from the Treaty, whatever the means employed. Contention that the claims of Iran cannot be founded in Article I of the Treaty – Interpretation in the light of the object and purpose of the Treaty – Object and purpose not concerned with the general regulation of peaceful and friendly relations between the parties – Documents produced and practice followed by the Parties – Provision not without legal significance for the interpretation of the other provisions but unable, taken in isolation, to be a basis for the jurisdiction of the Court. Contention that the claims of Iran cannot be founded on Article IV, paragraph 1, of the Treaty – Provision not including any territorial limitation – Provision aimed at the treatment by each of the parties of the nationals and companies of the other – Inapplicability of Article IV, paragraph 1, to the particular case. Contention that the claims of Iran cannot be founded on Article X, paragraph 1, of the Treaty – Meaning of the word “commerce” in that provision – Scope not limited to maritime commerce – Scope not limited to activities of purchase and sale – Provision protecting “freedom of commerce” – Freedom that might in fact be impeded by acts entailing the destruction of goods destined to be exported or capable of affecting their transport and storage with a view to export – Destruction capable of having an effect upon the export trade in Iranian oil and of having an adverse effect upon freedom of commerce as guaranteed by the provision in question – Lawfulness can be evaluated in relation to that provision. Subsidiary submissions no longer having any object.

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51

Text of the operative paragraph(s) (p. 821, para. 55) THE COURT, (1) Rejects, by fourteen votes to two, the preliminary objection of the United States of America according to which the Treaty of 1955 does not provide any basis for the jurisdiction of the Court; IN FAVOUR: President Bedjaoui, Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Rigaux AGAINST: Vice-President Schwebel, Judge Oda (2) Finds, by fourteen votes to two, that it has jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1, of that Treaty. IN FAVOUR: President Bedjaoui, Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Rigaux AGAINST: Vice-President Schwebel, Judge Oda Declarations/Opinions Separate Opinion

Judges Shahabuddeen, Ranjeva, Higgins and Parra-Aranguren, Judge ad hoc Rigaux

Dissenting Opinion

Vice-President Schwebel, Judge Oda

Sources of Law ICJ Statute

Art. 40(2), p. 805(2) Art. 40(3), p. 805(2) Art. 31(2), p. 806(6)

ICJ Rules of Court

Art. 79(1), p. 806(5) Art. 79(3), p. 806(5) Art. 53(2), p. 806(7) Art. 72, p. 806(7) Art. 79(7), p. 807–808(10), 811(19)

PCIJ case-law

Oscar Chinn case (P.C.I.J., Series A/B, No. 63, p. 65), p. 819(48)

ICJ case-law

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), (Judgment I.C.J. Reports 1980, p. 28, para. 54), p. 809(15), 815, (30) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (I.C.J. Reports 1986, p. 186, para. 222 and p. 136, para. 271), P. 811(20),

Oil Platforms (Iran v. USA)

52 Sources of Law (cont.) ICJ case-law

[I.C.J. Reports 1986, p. 137(273)], p. 814(28), Territorial Dispute (Libyan Arab Jamahiriya/Chad), (I.C.J. Reports 1994, p. 6), p. 813(27) Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), p. 815(30)

UN General Assembly Resolutions

2625 (XXV) of 24 October 1970, p. 812(24)

Treaties

1919 Convention of Saint-German of 1919, p. 819(48) 1955 Treaty of Amity, Economic Relations and Consular Rights between the USA and Iran of 15 August 1955, p. 805(1), 806–807(9), 807–808(10), 809(13), 809–810(16)(17) (18), 811(19)(20)(21), 812(22)(24)(25), 813(26)(27), 814(28) (29), 815(30)(31)(32), 816(35)(36), 817(37)(39)(41)(42)(43), 818(45), 818–819(46), 819(47)(49)(50), 820(51)(52)(53), 1956 Treaty of Friendship, Commerce and Navigation between the United States of America and Nicaragua of 21 January 1956, p. 811(20), 819(47), 1969 Vienna Convention on the Law of Treaties of 23 May 1969, p. 812(23) Treaties of Friendship, Commerce or Economic Relations concluded by the United States of America with China, Ethiopia, Iran, Oman, Muscat, p. 814(29)

Others

Provisional Agreement relating to commercial and other relations of 14 May 1928, p. 817(41) Official Records of the General Assembly, Twenty-first session, Annexes, Agenda item 88, doc. A/6396, p. 818–819(46) Basic Documents on International Trade Law, Chia-Jui Cheng (ed.), 2nd rev. ed., p. 3), p. 818–819(46)

Representation of Parties Iran Agent

Mr. M. H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the Iran-United States Claims Tribunal

Counsel & Advocates

Dr. S. M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Company Mr. James R. Crawford, Whewell Professor of International Law, University of Cambridge, Member of the International Law Commission



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53

Iran (cont.) Counsel & Advocates (cont.)

Mr. Luigi Condorelli, Professor of International Law, University of Geneva Mr. Rodman R. Bundy, avocat à la courd’appel de Paris, Member of the New York Bar, Frere Chomeley, Paris

Counsel

Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor Emeritus, University of Cambridge Dr. N. A. Mansourian, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of Iran Dr. M. A. Movahed, Senior Legal Adviser, National Iranian Oil Company Dr. H. Omid, Legal Adviser, National Iranian Oil Company Dr. A. A. Mahrokhzad, Legal Adviser, National Iranian Oil Company Mr. David S. Sellers, Solicitor, Frere Cholemely, Paris Ms. Loretta Malintoppi, avocat à la Court, Frere Cholemely, Paris

USA Agent

Mr. Michael J. Matheson, Acting Legal Adviser, United States Department of State

Counsel & Advocates

Dr. John H. McNeil, Senior Deputy General Counsel, United States Department of State Professor Andreas F. Lowenfeld, Rubin Professor of International Law, New York University School of Law Mr. John R. Crook, Assistant Legal Adviser for United Nations Affairs, United States Department of State Dr. Sean Murphy, Counsellor for Legal Affairs, United States Embassy, The Hague Mr. Jack Chorowsky, Special Assistant to the Legal Adviser, United States Department of State Commander Ronald D. Neubauer, Judge Advocate General’s Corps, United States Navy

Counsel

Mr. Allen Weiner, Attaché (Office of the Legal Counsellor), United States Embassy, The Hague

54

Oil Platforms (Iran v. USA) Section C – Counter-Claims

Official citation: Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, I.C.J. Reports 1998, p. 190 Date of Judgment: 10 March 1998 Authoritative text: English Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleisch­ hauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Rigaux; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 206, para. 46) THE COURT, (A) By fifteen votes to one, Finds that the counter-claim presented by the United States in its CounterMemorial is admissible as such and forms part of the current proceedings; IN FAVOUR: Vice-President (Acting President) Weeramantry; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleisch­ hauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; AGAINST: Judge ad hoc Rigaux (B) Unanimously, Directs Iran to submit a Reply and the United States to submit a Rejoinder relating to the claims of both Parties and fixes the following dates as timelimits for the filing of these pleadings; For the Reply of Iran, 10 September 1998; For the Rejoinder of the United States, 23 November 1999; and Reserves the subsequent procedure for further decision. Declarations/Opinions Separate Opinion

Judges Oda and Higgins

Dissenting Opinion

Judge ad hoc Rigaux



Oil Platforms (Iran v. USA)

55

Sources of Law ICJ Statute

Art. 40(3), p. 199(20) Art. 48, p. 190

ICJ Rules of Court

Art. 13(1), p. 194(7) Art. 31, p. 190 Art. 32(1), p. 194(7) Art. 44, p. 190 Art. 45, p. 190 Art. 45(2), p. 205–206(44) Art. 79, p. 192(3), 198–199(19), 200(22) Art. 80, p. 190, 192(4), 197(14, 15), 198(19), 200(22, 23), 203(32), 205(40) Art. 80(1), p. 194(6), 195(9, 10), 196(13), 198–199(19), 203(32, 33), 205(40) Art. 80(2), p. 203(32) Art. 80(3), p. 194(6), 194–195(8), 195(10, 11), 196(13), 198(19), 200(22), 202–203(29), 203(31)

ICJ case-law

Current Order of 3 June 1993, p. 192(3) Judgment of 12 December 1996, p. 196(12), 198(18), 204(34, 35) Previous Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia), [I.C.J. Reports 1997, pp. 257–258(31)], p. 203–204(33)

Treaties

Treaty of Amity, Economic Relations and Consular Rights between the USA and Iran of 15 August 1955, p. 190–191(1), 191–192(2), 193(3, 4), 193(5), 196(12), 196(17), 198(18), 201(25), 202(26), 204(34, 35, 36), 205(38)

Section D – Merits Official citation: Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 161 Date of Judgment: 6 November 2003 Authoritative text: English Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleisch­ hauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren; Judge ad hoc Rigaux; Registrar Valencia-Ospina

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Oil Platforms (Iran v. USA)

Headnotes: 1955 Treaty of Amity, Economic Relations and Consular Rights between the ited Slates and [ran – Iranian claims and United States counter-claim for breach of Article X, paragraph 1 – Jurisdiction based on Article XXI, para­graph 2 – Factual background. United States contention that the Court should reject [ran’s claims and refuse it the relief it seeks because of Fran’s allegedly unlawful conduct – “Clean hands” – Argument not presented as objection to admissibility – Not neces­sary to decide the issue. Iranian claims based on Article X, paragraph I, of Treaty – Alleged infringement of freedom of commerce between the territories of the Parties by attack on Iranian oil platforms – Judgment of 12 December 1996 on jurisdic­tion- Relevance of other Articles for interpretation or application of Article X, paragraph 1 – Task of the Court to ascertain whether there has been a breach of Article X, paragraph 1 – United States contention that Article XX, paragraph 1 (d), concerning measures necessary to protect the essential security interests of a party, is determinative of the question – Order in lavish the Court should examine Articles X, paragraph 1, and XX, paragraph 1 (d) – Freedom of Court to choose grounds for its decision – Particular considerations in this case militating in favor of an examination of Article XX, paragraph 1 (d), prior to Article X, paragraph 1 – Relationship between Article XX, para­graph 1 (d), and international law on the use of force – Jurisdiction of the Court to interpret and apply Article XX, paragraph 1 (d), extending, where appropriate, to the determination whether action was or not unlawful use of force, by reference to international live – Provisions of the United Nations Charter and customary international law – Jurisdiction of the Court limited to that conferred by the consent of the Parties. Article XX, paragraph 1 Cod) – Measures “necessary” to protect the party’s essential security interests – Criterion of “necessity” to be assessed by the Court – Overlapping of question whether the measures taken were “necessary” and of their validity as acts of self-defense – Actions on the platforms amounted to a use of force. Aback of 19 October 1987 on Reheat – United States contention that this action was necessary to protect its essential security interests and a valid act of self defense – Question of the existence of an “armed aback” on the United States – Missile aback on the Sea Isle City – Burden of proof of the existence of an aback by Iran on the United States not discharged – Alleged series of quacks by Iran not an “armed attack” on the United States – Attacks of 18 April 1988 on Nasr and Salman and “Operation Praying Mantis” – Mining of the USS Samuel B. Roberts – Evidence inconclusive that the vessel was the victim of a mine laid by Iran – Mine incident not an “armed attack” by Iran against the United States. Examination of criteria of necessity and proportionality in the context of self­defence – Nature of the target of the force used in self-defence: insufficient



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57

evidence as to the significance of the military presence and activity on the plat­ forms – Attacks on the platforms nOi meeting the criteria of necessity and pro­ portionality under the right of self-defence. Attacks on the platforms not justified, under Article XX, paragraph 1 Cd), as measures necessary to protect the essential security interests of the United States, being acts of armed force not qualifying under international law as acts of self-defence. Article X, paragraph I – Scope of the 1996 Judgment – Question whether the United States actions affected “freedom of commerce” under Article X, paragraph 1 – Meaning of “commerce” in that text – Not limited to maritime commerce nor to activities of purchase and sale – No justification for treating platforms as military installations, and thus outside protection of Article X, paragraph 1. Nature of commercial activities protected – United States attacks entailing destruction of goods destined to be exported and affecting transport of these goods with a view to export – Attacks impeded Iran’s freedom of commerce – Treaty limitation to freedom of commerce “between the territories of the two High Contracting Parties” – Exports of Iranian oil to United States territory until 29 October 1987 – Reshadat and Resalat platforms under repair at the time they were attacked – United States Executive Order 12613 of 29 October 1987 imposing an embargo on goods of Iranian origin – No exports of Iranian crude oil to the United States after 29 October 1987 – Legality of the embargo not before the Court – Salman and Nasr platforms attacked after enactment of embargo – Import into United States of petroleum products derived from Iranian crude oil not constituting “commerce between the territories” of the Parties for the purposes of the 1955 Treaty – Attacks on the platforms not a breach of Article X, paragraph 1. United States counter-claim – Scope of the Order of 10 March 1998 – Ira­nian objections to jurisdiction and to admissibility of the counter-claim other than those decided under Article 80, paragraph 3, of the Rules of Court. First objection of Iran – Contention that the counter-claim was presented without prior negotiation – Dispute “not satisfactorily adjusted by diplomacy” for the purposes of Article XXI, paragraph 2 – Second objection of Iran ­Contention that the counter-claim was made on behalf of third States or foreign entities – Counter-claim limited to alleged breaches of freedoms guaranteed to the United States – Third objection of Iran – Contention that the counter­claim is beyond Article X, paragraph 1 – United Slates limiting the scope of its counter-claim – Fourth objection of Iran – Contention that jurisdiction of the Court does not extend to freedom of navigation – Jurisdiction to deal with free­dom of commerce and navigation under Article X, paragraph 1 – Fifth objec­tion by Iran – Admissibility – Alleged broadening of counter-claim by the United States – No transformation of the subject of the dispute originally sub­mitted to the Court.

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Oil Platforms (Iran v. USA)

Examination of specific incidents invoked by the United States – None of the vessels involved engaged in commerce or navigation between the territories of the Parties – No breach of Article X, paragraph 1 – United States generic counterclaim – No proof that actions of Iran infringed the freedom of com­merce or of navigation between the territories of the Parties – No specific inci­dent constituted a breach of Treaty – Generic counter-claim cannot be upheld. Text of the operative paragraph(s) (p. 218, para. 125) (1) By fourteen votes to two, Finds that the actions of the United States of America against Iranian oil platforms on 19 October 1987 and 18 April 1988 cannot be justified as measures necessary to protect the essential security interests of the United States of America under Article XX, paragraph I (d), of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, as interpreted in the light of international law on the use of force; finds further that the Court cannot however uphold the submission of the Islamic Republic of Iran that those actions constitute a breach of the obligations of the United States of America under Article X, paragraph I, of that Treaty, regarding freedom of com­merce between the territories of the parties, and that, accordingly, the claim of theIslamic Republic of Iran for reparation also cannot be upheld; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal, Owada, Simma, Tonka; Judge ad hoc Reggae AGAINST: Judges Al-Khasawneh, Elaraby (2) By fifteen votes to one, Finds that the counter-claim of the United States of America concern­ing the breach of the obligations of the Islamic Republic of Iran under Article X, paragraph 1, of the above-mentioned 1955 Treaty, regarding freedom of commerce and navigation between the territories of the parties, cannot be upheld; and accordingly that the counter-claim of the United States of America for reparation also cannot be upheld. IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AI-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Rigaux AGAINST: Judge Simma

Oil Platforms (Iran v. USA)

Declarations/Opinions Declaration

Vice-President Ranjeva and Judge Koroma

Separate Opinions

Judges Higgins, Parra-Aranguren and Kooijmans

Dissenting Opinion

Judge Al-Khasawneh

Separate Opinion

JudgeBuergenthal

Dissenting Opinion

Judge Elaraby

Separate Opinions

Judges Owada and Simma and Judge ad hoc Rigaux

Sources of Law UN Charter

Art. 51, p. 185(48), 193(67),

ICJ Statute

Art. 31(2), p. 166(6) Art. 40(2), p. 166(2) Art. 40(3), p. 166(2) Art. 48, p. 190

ICJ Rules of Court

Art. 13(1), p. 167(10) Art. 31, p. 190 Art. 32(1), p. 167(10) Art. 44, p. 190 Art. 45, p. 190 Art. 45(2), p. 205–206(44) Art. 53(2), p. 169(16) Art. 54, p. 168(14) Art. 56, p. 168(15) Art. 56(3), p. 169(15) Art. 58, p. 168(14) Art. 61(4), p. 169(17) Art. 72, p. 169(17) Art. 79, p. 192(3), 198–199(19), 200(22) Art. 79(1), p. 166(5) Art. 80, p. 209(103), 210(105) Art. 80(1), p. 167(10), 195(9, 10), 196(13), 198–199(19), 203(32, 33), 205(40) Art. 80(2), p. 203(32) Art. 80(3), p. 167(10), 194–195(8), 195(10, 11), 196(13), 198(19), 200(22), 202–203(29), 203(31)

ICJ case-law

Current Order of 4 December 1992, p. 166(3) Order of 3 June 1993, p. 166(4) Order of 18 January 1994, p. 166(5) Order of 16 December 1996, p. 167(9), 174(22) Order of 10 March 1998, p. 167(11, 13), 174(22), 208(102), 209(103, 104), 210(105), 212(113, 114)

59

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Sources of Law (cont.) ICJ case-law (cont.)

Order of 26 May 1998, p. 168(168(12) Order of 8 December 1998, p. 168(12), 214(118) Judgment of 12 December 1996, p. 167(8), 177(29), 178(31, 32), 179(33), 182(41), 199(80), 200(81), 202(86, 88), 204(91, 92) Previous Military and Paramilitary Activities in and against Nicaragua [I.C.J. Reports 1986, p. 117(225)], p. 179(34, 35), 180(37), 181(38, 39, 40), 182(41, 42), 186(51), 190(60), 192(64), 196(74), 211(107) Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment [I.C.J. Reports 1958, p. 62], p. 180(37) Legality of the Threat or Use of Nuclear Weapons, [I.C.J. Reports 1996(I), p. 245(410], p. 198(76) US Diplomatic and Consular Staff in Tehran [I.C.J. Reports 1980, p. 26–28), p. 211(107) Certain Phosphate Lands in Nauru (Nauru v. Australia) [I.C.J. Reports 1992, p. 265(630], p. 213(117)

Treaties

1955 Treaty of Amity, Economic Relations and Consular Rights between the USA and Iran of 15 August 1955, p. 166(1), 167(8), 169(18), 170(19), 173(20, 21), 174(22), 176(26, 27), 178(31), 179(33), 180(36, 37), 183(43, 44), 184(46, 47), 185(49), 196(73), 198(77), 199(78, 79, 80), 200(81, 82), 201(83), 202(85, 86), 203(89), 204(90, 92), 205(94), 207(96, 98), 208(99, 100, 101, 102), 211(109, 110, 111), 212(112, 113, 114), 213(115, 117), 214(118, 119), 215(120), 217(121, 122, 123), 218(124, 125)

UN

UNSC Resolution 598(1987) of 20 July 1987, p. 174(23)

Inter(national) Legal sources

2 October 1997 Letter of Iran on Counter-Claims of USA, p. 167(10) 18 November 1997 Communication of Iran, p. 167(10) 18 December 1997 Communication of USA, p. 167(10) 30 July 2001 Letter of Agent of Iran, p. 168(13) 18 November 2002 US Expert’s Report, p. 168(15) 27 March 1997, Independent Expert Report, p. 187(53) 20 January 2003 Letter of Agent of Iran, p. 168(15) 19 October 1987 Letter from the USA, p. 185(48), 201(85) 18 April 1998 Letter of PR USA S/19791, p. 193(66) 29 October 1987 US President Executive Order 12613, p. 204(90, 91), 205(93, 94), 206(96), 207(98)

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61

Representation of Parties Iran Agent

Mr. M.H. Zahedin-Labbaf, Agent of the Islamic Republic of Iran to the Iran-United States Claims Tribunal, Deputy Director for Legal Affairs, Bureau of International Legal Services of the Islamic Republic of Iran, The Hague,

Counsel & Advocates

Mr. D. Momtaz, Professor of International Law, Tehran University, member of the International Law Commission, Associate Member of the Institute of International Law, Mr. S.M. Zeinoddin, Head of Legal Affairs, National Iranian Oil Com­pany, Mr. Michael Bothe, Professor of Public Law, Johann Wolfgang Goethe Uni­versity of Frankfurt-am-Main, Head of Research Unit, Peace Research Institute, Frankfurt, Mr. James R. Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the English and Australian Bars, Member of the Institute of International Law, Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the International Law Commission, Mr. Rodman R. Bundy, avocata la courd’appel de Paris, member of the New York Bar, Frere Cholmeley/Eversheds, Paris, Mr. David S. Sellers, avocata la courd’appel de Paris, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley/Eversheds, Paris,

Counsel

Mr. M. Mashkour, Deputy Director for Legal Affairs, Bureau of Interna­tional Legal Services of the Islamic Republic of Iran, Mr. M.A. Movahed, Senior Legal Adviser, National Iranian Oil Company, Mr. R. BadriAhari, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of Iran, Tehran, Mr. A. Beizaei, Legal Adviser, Bureau of International Legal Services of the Islamic Republic of Iran, Paris, Ms. Nanette Pilkington, avocata la courd’appel de Paris, Frere Cholmeley/Eversheds, Paris, Mr. William Thomas, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley/Eversheds, Paris, Mr. Leopold von Carlowitz, Research Fellow, Peace Research Institute, Frankfurt, Mr. Mathias Forteau, docteur en droit, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre,

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Iran (cont.) Technical Adviser

Mr. Robert C. Rizzutti, Vice-President, Cartographic Operations, Interna­tional Mapping Associates

USA Agent

The Honourable William H. Taft, IV, Legal Adviser, United States Depart­ment of State,

Co-Agent

Mr. Ronald J. Bettauer, Deputy Legal Adviser, United States Department of State,

Counsel & Advocates

Mr. Michael J. Matheson, Professor, George Washington University School of Law, Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States Department of State, Mr. Michael J. Mattler, Attorney-Adviser, United States Department of State, Mr. Sean Murphy, Professor, George Washington University School of Law, Mr. Ronald D. Neubauer, Associate Deputy General Counsel, United States Department of Defense, Mr. Prosper Weil, Professor Emeritus, University of Paris II, Member of the Institute of International Law, member of the Academie des sciences morales et politiques (Institut de France),

Advocates

Mr. Paul Beaver, Defence& Maritime Affairs Consultant, Ashbourne Beaver Associates, Ltd., London, Mr. John Moore, Senior Associate, C & 0 Resources, Washington, D.C.,

Counsel

Mr. Clifton M. Johnson, Legal Counsellor, United States Embassy, The Hague, Mr. David A. Kaye, Deputy Legal Counsellor, United States Embassy, The Hague, Ms. Kathleen Milton, Attorney-Adviser, United States Department of State,

Administrative Staff

Ms. Marianne Hata, United States Department of State, Ms. Cecile Jouglet, United States Embassy, Paris, Ms. Joanne Nelligan, United States Department of State, Ms. Aileen Robinson, United States Department of State, Ms. Laura Romains, United States Embassy, The Hague

CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) General List No.: 91 Mean(s) and date of institution of the case: Application (20 March 1993) Statement of Claim/Question: Bosnia and Herzegovina requests the Court to adjudge and declare as follows: “(a) that Yugoslavia (Serbia and Montenegro) has breached, and is continuing to breach, its legal obligations toward the People and State of Bosnia and Herzegovina under Articles I, II(a), II(b), II(c), II(d), III(a), III(b), III(c), III(d), III(e), IV and V of the Genocide Convention; (b) that Yugoslavia (Serbia and Montenegro) has violated and is continuing to violate its legal obligations toward the People and State of Bosnia and Herzegovina under the four Geneva Conventions of 1949, their Additional Protocol of I of 1977, the customary international laws of war including the Hague Regulations on Land Warfare of 1907, and other fundamental principles of international humanitarian law; (c) that Yugoslavia (Serbia and Montenegro) has violated and continues to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 28 of the Universal Declaration of Human Rights with respect to the citizens of Bosnia and Herzegovina; (d) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia and Herzegovina, and is continuing to do so; (e) that in its treatment of the citizens of Bosnia and Herzegovina, Yugoslavia (Serbia and Montenegro) has violated, and is continuing to violate, its solemn obligations under Articles 1(3), 55 and 56 of the United Nations Charter;

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Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia)

(f ) that Yugoslavia (Serbia and Montenegro) has used and is continuing to use force and the threat of force against Bosnia and Herzegovina in violation of Articles 2(1), 2(2), 2(3), 2(4) and 33(1), of the United Nations ­Charter; (g) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has used and is using force and the threat of force against Bosnia and Herzegovina; (h) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has violated and is violating the sovereignty of Bosnia and Herzegovina by: – armed attacks against Bosnia and Herzegovina by air and land; – aerial trespass into Bosnian airspace; – efforts by direct and indirect means to coerce and intimidate the Government of Bosnia and Herzegovina; (i) that Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has intervened and is intervening in the internal affairs of Bosnia and Herzegovina; (j) that Yugoslavia (Serbia and Montenegro), in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Bosnia and Herzegovina by means of its agents and surrogates, has violated and is violating its express charter and treaty obligations to Bosnia and Herzegovina and, in particular, its charter and treaty obligations under Article 2(4) of the United Nations Charter, as well as its obligations under general and customary international law; (k) that under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right to defend Itself and its People under United Nations Charter Article 51 and customary international law, including by means of immediately obtaining military weapons, equipment, supplies and troops from other States; (l) that under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right under United Nations Charter Article 51 and customary international law to request the immediate assistance of any State to come to its defence, including by military means (weapons, equipment, supplies, troops, etc.);



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(m) that Security Council resolution 713 (1991), imposing a weapons embargo upon the former Yugoslavia, must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law; (n) that all subsequent Security Council resolutions that refer to or reaffirm resolution 713(1991) must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law; (o) that Security Council resolution 713(1991) and all subsequent Security Council resolutions referring thereto or reaffirming thereof must not be construed to impose an arms embargo upon Bosnia and Herzegovina, as required by Articles 24(1) and 51 of the United Nations Charter and in accordance with the customary doctrine of ultra vires; (p) that pursuant to the right of collective self-defence recognised by United Nations Charter Article 51, all other States Parties to the Charter have the right to come to the immediate defence of Bosnia and Herzegovina – at its request – including by means of immediately providing it with weapons, military equipment and supplies, and armed forces (soldiers, sailors, airpeople etc.); (q) that Yugoslavia (Serbia and Montenegro) and its agents and surrogates are under an obligation to cease and desist immediately from its breaches of the foregoing legal obligations, and is under a particular duty to cease and desist immediately: – from its systematic practice of so-called ‘ethnic cleansing’ of the citizens and sovereign territory of Bosnia and Herzegovina; – from the murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of the citizens of Bosnia and Herzegovina; – from the wanton devastation of villages, towns, districts, cities, and religious institutions in Bosnia and Herzegovina; – from the bombardment of civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo; – from continuing the siege of any civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo;

66



Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia) – from the starvation of the civilian population in Bosnia and ­Herzegovina; – from the interruption of, interference with, or harassment of humanitarian relief supplies to the citizens of Bosnia and Herzegovina by the international community; – from all use of force – whether direct or indirect, overt or covert, against Bosnia and Herzegovina, and from all threats of force against Bosnia and Herzegovina; – from all violations of the sovereignty, territorial integrity or political independence of Bosnia and Herzegovina, including all intervention, direct or indirect, in the internal affairs of Bosnia and Herzegovina; – from all support of any kind – including the provision of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support – to any nation, group, organization, movement of individual engaged or planning to engage in military or paramilitary actions in or against Bosnia and Herzegovina;

(r) that Yugoslavia (Serbia and Montenegro) has an obligation to pay Bosnia and Herzegovina, in its own right and as parens patriae for its citizens, reparations for damages to persons and property as well as to the Bosnian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. Bosnia and Herzegovina reserves the right to introduce to the Court a precise evaluation of the damages caused by Yugoslavia (Serbia and Montenegro)”. Counter-claims of Yugoslavia “The Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: 1. In view of the fact that no obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide have been violated with regard to Muslims and Croats – since the acts alleged by the Applicant have not been committed at all, or not to the extent and in the way alleged by the Applicant, or – if some have been committed, there was absolutely no intention of committing genocide, and/or – they have not been directed specifically against the members of one ethnic or religious group, i.e., they have not been committed against individuals just because they belong to some ethnic or religious group, consequently, they cannot be qualified as acts of genocide or other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and/or



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2. In view of the fact that the acts alleged by the Applicant in its submissions cannot be attributed to the Federal Republic of Yugoslavia, – since they have not been committed by the organs of the Federal Republic of Yugoslavia, – since they have not been committed on the territory of the Federal Republic of Yugoslavia, – since they have not been committed by the order or under control of the organs of the Federal Republic of Yugoslavia, – since there is no other grounds based on the rules of international law to consider them as acts of the Federal Republic of Yugoslavia, therefore the Court rejects all claims of the Applicant, and 3. Bosnia and Herzegovina is responsible for the acts of genocide committed against the Serbs in Bosnia and Herzegovina and for other violations of the obligations established by the 1948 Convention on he Prevention and punishment of the Crime of Genocide, – because it has incited acts of genocide by the ‘Islamic Declaration’, and in particular by the position contained in it that ‘there can be no peace of coexistence between “Islamic faith” and “non-Islamic” social and political institutions’, – because it has incited acts of genocide by the Novi Vox, paper of the Muslim youth, and in particular by the verses of a ‘Patriotic Song’ which read as follows: ‘Dear mother, I’m going to plant willows, We’ll hang Serbs from them. Dear mother, I’m going to sharpen knives, We’all soon fill pits again.’ – because it has incited acts of genocide by the paper Zmaj od Bosne, and in particular by the sentence in an article published in it that ‘Each Muslim must name a Serb and take oath to kill him’; – because public calls for the execution of Serbs were broadcast on raid ‘Hajat’ and thereby acts of genocide were incited; – because the armed forces of Bosnia and Herzegovina, as well as other organs of Bosnia and Herzegovina have committed acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, against the Serbs in Bosnia and Herzegovina, which have been stated in Chapter Seven of the CounterMemorial;

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Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia)

– because Bosnia and Herzegovina has not prevented the acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, against the Serbs on its territory, which have been stated in Chapter Seven of the Counter-Memorial. 4. Bosnia and Herzegovina has the obligation to punish the persons held responsible for the acts of genocide and other acts prohibited by the 1948 Convention on the Prevention and Punishment of the Crime of ­Genocide. 5. Bosnia and Herzegovina is bound to take necessary measures so that the said acts would not be repeated in the future. 6. Bosnia and Herzegovina is bound to eliminate all consequences of the violation of the obligations established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and provide adequate compensation”; Basis of jurisdiction invoked by the Applicant(s): In addition to mentioned in the Application quoted above, the Letter of 8 June 1992 addressed by the President of the Republic of Montenegro and President of the Republic of Serbia to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia, p. 16–17(27) Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

20 March 1993 to 26 February 2007

Provisional measures

20 March 1993 to 8 April 1993 1–2 April 1993

Additional provisional measures

27 July 1993 to 13 September 1993

25–26 August 1993

Preliminary objection

26 June 1995 to 11 July 1996

Between 29 April and 3 May 1996

Merits

11 July 1996 to 26 February 2007

Between 27 February to 9 May 2006



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Orders/Message of the President Date of Order and Authority 8 April 1993 Court – President Sir Robert Jennings

Content Please refer Section B

16 April 1993 Fixing of time-limits: President Sir Robert Jennings 15 October 1993 – Memorial of Bosnia and Herzegovina 15 April 1994 – Counter-Memorial of the Federal Republic of Yugoslavia (Serbia and Montenegro) 5 August 1993 (Message of the President)

The President of the Court calls upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects and calls upon the Parties to act, and stress that provisional measures already indicated in the Order which the Court made after hearing the Parties, on 8 April 1993, still apply and accordingly calls upon the Parties to take renewed note of the Court’s Order and to take all and any measures that may be within their power to prevent any commission, continuance, or encouragement of the heinous international crime of genocide

13 September 1993 Court – President Sir Robert Jennings

Please refer Section C

7 October 1993 Vice-President Oda

Extension of time-limits: From 15 October 1993 to 15 April 1994 – Memorial of Bosnia and Herzegovina From 15 April 1994 to 15 April 1995 – Counter-Memorial of Yugoslavia

21 March 1995 President Bedjaoui

Extension of time-limits: From 15 April to 30 June 1995 – Counter-Memorial of Yugoslavia

14 July 1995 President Bedjaoui

Fixing of time-limit to file written statement of observations on preliminary objection of Yugoslavia: 14 November 1995 – Bosnia and Herzegovina

23 July 1996 President Bedjaoui

Fixing of time-limits: 23 July 1997 – Counter-Memorial of Yugoslavia

17 December 1997 Court – President Schwebel

Please refer Section E

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Orders/Message of the President (cont.) Date of Order and Authority

Content

22 January 1998 President Schwebel

Extension of time-limits: From 23 January to 23 April 1998 – Reply of Bosnia and Herzegovina From 23 July to 22 January 1999 – Rejoinder of Yugoslavia

11 December 1998 Court – President Schwebel

Extension of time-limits: From 22 January 1999 to 22 February 1999 – Rejoinder of Yugoslavia

10 September 2001 President Guillaume

Withdrawal by the FR Yugoslavia of the counter-claims submitted in its counter-memorial

Request for extension of time-limits State

Remarks

Bosnia and Herzegovina (2 times)

1. Requests to extend filing of memorial by six months and should the request be granted, consented to the granting of an additional six months for the filing of counter-memorial if such were the respondent’s desire – Yugoslavia, in response to Bosnia-Herzegovina’s request, requests the time-limit for the filing of counter-memorial be extended by 12 months 2. Requests to extend filing of Reply until 23 April 1998 – Yugoslavia consents on the condition that likewise extension given for the filing of its Rejoinder

Yugoslavia (2 times)

1. Yugoslavia requests for an extension until 15 November 1995 the time-limit for the filing of counter-memorial.Bosnia and Herzegovina requests that the Court do not grant extension 2. Requests to extend filing of Rejoinder until 22 April 1999 – Objection by Bosnia and Herzegovina

Section B – Provisional Measures Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 3 Date of Order: 8 April 1993 Authoritative text: English



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Composition of the Court: President Sir Robert Jennings; Vice-President Oda; Judges Ago, Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola; Registrar ValenciaOspina Text of the operative paragraph(s) (p. 24, para. 52) THE COURT, Indicates, pending its final decision in the proceedings instituted on 20 March 1993, by the Republic of Bosnia and Herzegovina against the Federal Republic of Yugoslavia (Serbia and Montenegro), the following provisional measures: A. (1) Unanimously, The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent commission of the crime of genocide; (2) By 13 votes to 1, The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should in particular ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group; IN FAVOUR: President Sir Robert Jennings, Vice-President Oda, Judges Ago, Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola AGAINST: Judge Tarassov B. Unanimously, The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Government of the Republic of Bosnia and Herzegovina should not take any action and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention or punishment of the crime of genocide, or render it more difficult of solution.

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Declarations/Opinions Declaration

Judge Tarassov

Sources of Law UN Charter

Art. 2(1), p. 4–5(2.f ) Art. 2(2), p. 4–5(2.f ) Art. 2(3), p. 4–5(2.f ) Art. 2(4), p. 4–5(2.f, j) Art. 4, p. 13–14(17) Art. 24(1), p. 4–6(2.o) Art. 25, p. 18(33) Art. 33(1), p. 4–5(2.f ) Art. 51, p. 4–6(2.k, l, m, n, o, p) Art. 93(1), p. 12(15) Chapter VII, p. 18(33)

ICJ Statute

Art. 34(3), p. 9(6) Art. 35(3), 14(18) Art. 35(1), p. 12(15) Art. 36, p. 3 Art. 40(2), p. 9(4) Art. 40(3), p. 9(5) Art. 41, p. 3, 7(3), 16(25), 19(34), 21(42), 22(44), 22–23(47), 23(50) Art. 48, p. 3 Art. 63(1), 9(6)

ICJ Rules of Court

Art. 38(4), p. 9(4) Art. 42, p. 9(5) Art. 43, p. 9(6) Art. 73, p. 3, 7(3) Art. 73(2), p. 9(4, 9) Art. 74, p. 3, 7(3), 9(7) Art. 75, p. 3, 7(3) Art. 75(2), p. 22(46) Art. 78, p. 7(3)

PCIJ case-law

S. S. Wimbeldon, [P.C.I.J., Series A, No. 1, p. 6], p. 14(19) Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 34], p. 16(25) Chorzów Factory [Indemnities), Order of 21 November 1927, P.C.I.J., Series A, No. 12, p. 10], p. 21(42)



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Sources of Law (cont.) ICJ case-law

Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Report 1984, p. 426–427], p. 16–17(27) [I.C.J. Reports 1984, p. 434–435(95)], p. 18–19(33) Aegean Sea Continental Shelf [I.C.J. Reports 1978, p. 44(108)], p. 18(31) Reservations to the Genocide Convention, [Advisory Opinion: I.C.J. Reports 1951, p. 23], p. 23(49)

UN Resolutions

Security Council 713(1991), p. 4–6(2.m, n, o) 777(1992), p. 12(15, 16) 9 of 1946, p. 14(19) General Assembly 47/1, p. 12(15, 16), 13(17) 96(I) of 11 December 1946, p. 23(49)

Treaties

1948 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, p. 4, 4(1), 14(19, 20), 15(21, 23, 24), 16(25, 26), 18(32), 19(35, 38, 39), 21(42), 22(45, 46, 47), 24(52) 1948 Universal Declaration of Human Rights of 1948, p. 19–20(36)1949 Four Geneva Conventions of 1949, p. 4(2) 1949 Geneva Conventions for the Protection of Victims of War of 1949, p. 9–10(9) 1969 Vienna Convention on the Law of Treaties of 1969, p. 11(13) 1977 Additional Protocol I of 1977, p. 4(2) 1977 Additional Protocol of 1977, p. 9–10(9) 1978 Vienna Convention on Succession of States in respect of Treaties, p. 15–16(24)

Declaration

Declaration of the Federal Republic of Yugoslavia of 27 April 1992, p. 15(22)

Inter(national) legal references

Notice of Succession by Bosnia-Herzegovina of 29 December 1992, p. 15(23, 24)

UN Documents

ST/LEG/SER.E/10 and supplements, p. 9(6) A/47/485, p. 13–14(17)

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Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 325 Date of Order: 13 September 1993 Authoritative text: English Composition of the Court: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judges ad hoc Lauterpacht, Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 349, para. 61) THE COURT, (1) By 13 votes to 2, Reaffirms the provisional measures indicated in paragraph 52 A(1) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented IN FAVOUR: President Sir Robert Jennings, Vice-President Oda, Judges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh, Judge ad hoc Lauterpacht; AGAINST: Tarassov, Judge ad hoc Kreća (2) By 13 votes to 2, Reaffirms measures indicated in paragraph 52 A(2) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented; IN FAVOUR: President Sir Robert Jennings, Vice-President Oda, Judges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh, Judge ad hoc Lauterpacht AGAINST: Judge Tarassov, Judge ad hoc Kreća (3) By 14 votes to 1, Reaffirms measures indicated in paragraph 52(B) of the Order made by the Court on 8 April 1993, which should be immediately and effectively ­implemented.



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IN FAVOUR: President Sir Robert Jennings, Vice-President Oda, Judges Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh, Judge ad hoc Lauterpacht AGAINST: Judge ad hoc Kreća Declarations/Opinions Declaration

Vice-President Oda

Separate Opinion

Judges Shahabuddeen, Weeramantry and Ajibola, Judge ad hoc Lauterpacht

Dissenting Opinion

Judge Tarassov, Judge ad hoc Kreća

Sources of Law League Covenant

Art. 13, p. 339(29) Art. 14, p. 339(29)

UN Charter

Art. 1(3), p. 326–327(2.e) Art. 2(1), p. 326–327(2.f ) Art. 2(2), p. 326–327(2.f ) Art. 2(3), p. 326–327(2.f ) Art. 2(4), p. 326–327(2.f, j) Art. 24(1), p. 326–327(2.o) Art. 33(1), p. 326–327(2.f ) Art. 51, p. 326–327(2.k, l, m, n, o), 344–345(41) Art. 55, p. 326–327(2.e) Art. 56, p. 326–327(2.e)

ICJ Statute

Art. 37, p. 339–340(29) Art. 41, p. 329(3), 342(35), 344–345(41), 346(45), 347(48) Art. 59, p. 344(40)

ICJ Rules of Court

Art. 73, p. 325, 329(3), 330–331(4), 332(6) Art. 73(2), p. 333(7) Art. 74, p. 325, 329(3), 332(6) Art. 74(3), p. 335(17), 336–337(21) Art. 74(4), p. 333(10) Art. 75, p. 325, 329(3), 332(6) Art. 75(1), p. 333(8), 334(13), 335–336(19) Art. 75(2), p. 347(47) Art. 75(3), p. 337(22) Art. 76, p. 325, 337(22) Art. 78, p. 329(3)

PCIJ case-law

Rights of Minorities in Upper Silesia, [P.C.I.J., Series A, No. 15, p. 24], p. 341–342(34)

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Sources of Law (cont.) ICJ case-law

Current Order of 8 April 1993, p. 337(22, 23), 338(25), 342(37), 344(39), 345(42), 346(43, 44), 346(46), 347(49), 347(50), 348(51, 52, 54, 57), 349(59, 61) [I.C.J. Reports 1993, p. 16(26)], p. 338(25) [I.C.J. Reports 1993, p. 18(32)], p. 340–341(32) [I.C.J. Reports 1993, p. 24(52)], p. 342–343(37) Previous Military and Paramilitary Activities in and against Nicaragua [I.C.J. Report 1984, p. 426–427(80)], p. 338–339(28) [I.C.J. Reports 1986, p. 144(289)], p. 349(58) Corfu Channel, [I.C.J. Reports 1947–48, p. 27], p. 341–342(34)

UN Resolutions

Security Council 713(1991), p. 326–328(2.m, n, o), 344–345(41) 819(1993) of 16 April 1993, p. 348(54) 859(1993) of 24 August 1993, p. 348(55) 808(1993) of 22 February 1993, p. 348(56) 827(1993) of 25 May 1993, p. 348(56) General Assembly 24(I), p. 340(30) 96(I) of 11 December 1946, p. 348(51)

Treaties

1907 Hague Regulations on Land Warfare of 1907, 341(33) 1919 Treaty between the Allied and Associated Powers (United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities of 10 September 1919, p. 339(29), 340(30, 31) 1920 Serb-Croat-Slovene Treaty of 1920, p. 340(30) 1945 Nuremberg Charter, Judgment and Principles of 1945, 341(33) 1948 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, p. 326(1, 2), 332(6), 335–336(19), 338(25), 342(36, 37), 344(39), 344–345(40), 345(42), 346(43, 45), 346–347(46), 347(48), 347(50) 1949 Four Geneva Conventions of 1949, p. 326(2) 1949 Geneva Conventions for the Protection of Victims of War of 1949, p. 330–331(4) 1977 Additional Protocol I of 1977, p. 326(2), 330–331(4)

Declaration

Universal Declaration of Human Rights of 1948, p. 326(2)



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Section D – Preliminary Objections Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595 Date of Judgment: 11 July 1996 Authoritative text: French Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren; Judges ad hoc Lauterpacht and Kreća; Registrar Valencia-Ospina Headnotes: Jurisdiction of the Court – Withdrawal of the fourth preliminary objection of Yugoslavia – Article IX of the Genocide Convention: (a) Jurisdiction ratione personae – Intention expressed by Yugoslavia to remain bound by the treaties to which the former Yugoslavia was party – It has not been contested that Yugoslavia was party to the Genocide Convention – Notice of Succession addressed by Bosnia and Herzegovina to the SecretaryGeneral of the United Nations – Accession to independence of Bosnia and Herzegovina and admission to the United Nations – Article XI of the Genocide Convention opens it to “any Member of the United Nations” – Bosnia and Herzegovina could become a party to the Genocide Convention through the mechanism of State succession – Lack of mutual recognition of the Parties at the time of filing of the Application – Article X of the Dayton-Paris Agreement – Principle whereby the Court should not penalise a defect in a procedural act which the applicant could easily remedy. (b) Jurisdiction ratione materiae – Existence of a legal dispute – Dispute falling within the provisions of Article IX of the Genocide Convention – Applicability of the Convention without reference to the circumstances linked to the domestic or international nature of the conflict – The question whether Yugoslavia took part in the conflict at issues belongs to the merits – The obligation each State has to prevent and punish the crime of genocide is not territorially limited by the Convention – Article IX does not exclude any form of State responsibility under the Convention. (c) Scope ratione temporis of the jurisdiction of the Court. Additional bases of jurisdiction invoked by Bosnia and Herzegovina – Letter of 8 June 1992 from the Presidents of Montenegro and Serbia – Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes

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of 10 September 1919 – Acquiescence in the jurisdiction of the Court on the basis of Article IX of the Genocide Convention – Forum prorogatum. Admissibility of the Application – Events that might have taken place in a context of civil war – Heads of State presumed to be able to act on behalf of the State in its international relations and recognised as such. Absence of abuse of the rights of Yugoslavia under Article 36, paragraph 6, of the Statute and Article 79 of the Rules of Court. Text of the operative paragraph(s) (p. 623, para. 47) THE COURT, (1) Having taken note of the withdrawal of the fourth preliminary objection raised by the Federal Republic of Yugoslavia, Rejects (a) by fourteen votes to one, the first, second and third preliminary objections; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren, Judgead hoc Lauterpacht AGAINST: Judge ad hoc Kreća (b) by eleven votes to four, the fifth preliminary objection IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Koroma, Ferrari Bravo, Parra-Aranguren, Judge ad hoc Lauterpacht AGAINST: Judgead hoc Oda, Shi, Vereshchetin, Kreća (c) by fourteen votes to one, the sixth and seventh preliminary objections; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren, Judge ad hoc Lauterpacht AGAINST: Judge ad hoc Kreća (2) (a) by thirteen votes to two, Finds that, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, it has jurisdiction to adjudicate upon the dispute;



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IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren, Judgead hoc Lauterpacht Against: Judge Oda, Judgead hoc Kreća (b) By fourteen votes to one, Dismisses the additional bases of jurisdiction invoked the Republic of Bosnia and Herzegovina; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren, Judge ad hoc Kreća AGAINST: Judge ad hoc Lauterpacht (3) By thirteen votes to two, Finds that the Application filed by the Republic of Bosnia and Herzegovina on 20 March 1993 is admissible. IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Ferrari Bravo, Parra-Aranguren, Judge ad hoc Lauterpacht AGAINST: Judge Oda, Judge ad hoc Kreća Declarations/Opinions Declaration

Judge Oda, Judge ad hoc Lauterpacht

Joint declaration

Judges Shi and Vereshchetin

Separate Opinion

Judges Shahabuddeen, Weeramantry and Parra-Aranguren

Dissenting Opinion

Judge ad hoc Kreća

Sources of Law League Covenant

Art. 13, p. 619(38) Art. 14, p. 619(38)

UN Charter

Art. 1(3), p. 600(13) Art. 2(1), p. 600(13) Art. 2(2), p. 600(13) Art. 2(3), p. 600(13) Art. 2(4), p. 600(13), 600–601(13) Art. 24(1), p. 600–601(13) Art. 33(1), p. 600(13) Art. 51, p. 600–601(13) Art. 55, p. 600(13) Art. 56, p. 600(13)

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Sources of Law (cont.) ICJ Statute

Art. 31(3), p. 598(6) Art. 34(3), p. 598(3) Art. 36(6), p. 609(15), 622(46) Art. 37, p. 619(38) Art. 63(1), p. 598(3)

ICJ Rules of Court

Art. 40(2), p. 598(2) Art. 40(3), p. 598(2) Art. 41, p. 598(4) Art. 43, p. 598(3) Art. 53(2), p. 599(11) Art. 79(1), p. 599(9) Art. 79(3), p. 599(9) Art. 79(6), p. (15), 622(46)

PCIJ case-law

Mavrommatis Palestine Concessions, [P.C.I.J. Series A, No. 2, p. 34], p. 613(26) Certain German Interests in Polish Upper Silesia, [P.C.I.J. Series A, No. 6, p. 14], p. 613(26)

ICJ case-law

Current [I.C.J. Reports 1993, p. 16, para. 25), p. 611(20) Order of 8 April 1993, p. 598(4), [I.C.J. Reports 1993, pp. 16–18(27– 32)], p. 618(37), I.C.J. Reports 1993, p.11(13)], p. 621–622(44), Order of 16 April 1993, p. 598(5) Order of 13 September 1993, p. 598–599(7) [I.C.J. Reports 1993, pp. 340–341(32)], p. 618(37), [I.C.J. Reports 1993, pp. 339– 340(29–31)], p. 619–620(38), I.C.J. Reports 1993, pp. 341(33)], p. 620(39), I.C.J. Reports 1993, pp. 341–342(34)], p. 620–621(40), Previous Reservations to the Genocide Convention, [Advisory Opinion: I.C.J. Reports 1951, p. 23], p. 611(22), 615–616(31) [I.C.J. Reports 1951, p. 24], p. 611–612(22) Northern Cameroons, [I.C.J. Reports 1963, p. 28], p. 613(26) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 428–429(83)], p. 613–614(26) Interpretation of Peace Treaties, (First Phase), [Advisory Opinion, I.C.J. Reports 1950, p. 74], p. 614–615(29) East Timor, [I.C.J. Reports 1995, p. 100(22)], p. 614–615(29) Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, [Advisory Opinion, I.C.J. Reports 1988, p. 27–32], p. 616–617(33) Corfu Channel, [I.C.J. Reports 1947–48, p.27], p. 620–621(40)



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Sources of Law (cont.) UN Resolutions

General Assembly resolution 96 (I) of 11 December 1946, p. 615–616(31) Security Council resolution 713 (1991), p. 600–601(13)

Treaties

1907 Hague Regulations on Land Warfare of 1907, p. 600(13) 1919 Treaty between the Allied and Associated Powers (the United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities of 10 September 1919, p. 598–599(7), 606–608(15), 619–620(38), 1948 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, p. 597–598(2), 600(13), 602– 603(14), 603–604(14), 604–605(14), 606(15), 606–607(15), 607– 608(15), 610(17), 611(21)(22), 612(23)(24), 614(27), 615(30)(31), 615–616(31)(32)(33), 617(34)(35), 620(40), 621(41)(43), 622(46), 1949 Geneva Conventions of 1949, p. 600(13) 1969 Vienna Convention on the Law of Treaties, p. 621– 622(44)1977 Additional Protocol I of 1977, p. 600(13), 617– 618(35) 1977 Additional Protocol II of 1977, p. 617–618(35) 1995 General Framework Agreement for Peace in Bosnia and Herzegovina of 14 December 1995, p. 599(10), 613(26), 617(34)

Declaration

1948 Universal Declaration of Human Rights, p. 600(13)

Representation of Parties Bosnia and Herzegovina Agent

H.E. Mr. Muhamed Sacirbey, Ambassador and Permanent Representative of the Republic of Bosnia and Herzegovina to the United Nations

Deputy-Agent, Counsel & Advocate

Mr. Phon van den Biesen, Attorney in Amsterdam

Counsel & Advocates

Mr. Thomas M. Franck, Professor at the School of Law and Director, Center for International Studies, New York University Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of Political Studies, Paris Ms. Brigitte Stern, Professor, University of Paris I (Panthéon-Sorbonne)

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Bosnia and Herzegovina (cont.) Counsel

Mr. Khawar M. Qureshi, Member of the English Bar, Lecturer in Law, King’s College, London Ms. Vasvija Vidović, Minister-Counsellor, Embassy of Bosnia and Herzegovina in the Netherlands, representative of the Republic of Bosnia and Herzegovina at the International Criminal Tribunal for the former Yugoslavia Mr. Marc Weller, Assistant Director of Studies, Center for International Studies, University of Cambridge, Member of the Faculty of Law of the University of Cambridge

Counsellors

Mr. Pierre Bodeau, Research Assistant/Tutor, University of Paris X-Nanterre Mr. Michiel Pestman, Attorney in Amsterdam Mr. Thierry Vaissière, Research Student, Cedin-Paris I (Panthéon-Sorbonne)

Assistants

Mr. Hervé Ascencio, Research Assistant/Tutor, University of Paris X-Nanterre Ms. Marieke Drenth Ms. Froana Hoff Mr. Michael Kellogg Mr. Harold Kocken Ms. Nathalie Lintvelt Mr. Sam Muller Mr. Joop Nijssen Mr. Eelco Szabó

Federal Republic of Yugoslavia Agents

Mr. Rodoljub Etinski, Chief Legal Adviser, Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, Professor of International Law, Novisad University Mr. Djordje Lopičić, Chargé d’Affaires, Embassy of the Federal Republic of Yugoslavia in the Netherlands

Counsel & Advocates

Mr. Ian Brownlie, C.B.E., F.B.A., Q.C., Chichele Professor of International Law, University of Oxford Mr. Miodrag Mitić, Assistant Federal Minister for Foreign Affairs of the Federal Republic of Yugoslavia (Ret.)



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Federal Republic of Yugoslavia (cont.) Mr. Eric Suy, Professor, Catholic University of Louvain (K. U. Leuven), formerly Under-Secretary-General and Legal Counsel of the United Nations Counsel

Mr. Stevan Djordjević, Professor of International Law, Belgrade University Mr. Shabtai Rosenne, Member of the Israel Bar Mr. Gavro Perazić, Professor of International Law, Podgorica University

Section E – Order on Counter-Claims Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Order of 17 December 1997, Judgment, I.C.J. Reports 1997, p. 243 Date of Order: 17 December 1997 Authoritative text: French Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judges ad hoc Lauterpacht and Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 260, para. 43) THE COURT, (A) By thirteen votes to one, Finds that the counter-claims submitted by Yugoslavia in its CounterMemorial are admissible as such and form part of the current proceedings; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Herczegh, Shi, Fleischhauer, Vereshchetin, Parra-Aranguren, Kooijmans; Judges ad hoc Lauterpacht, Kreća AGAINST: Vice-President Weeramantry

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(B) By thirteen votes to one Directs Bosnia and Herzegovina to submit a Reply and Yugoslavia to submit a Rejoinder relating to the claims of both Parties and fixes the following dates, accepted by the Parties, as time-limits for the filing of these pleadings: For the Reply of Bosnia and Herzegovina, 23 January 1998; For the Rejoinder of Yugoslavia, 23 July 1998; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Herczegh, Shi, Fleischhauer, Vereshchetin, Parra-Aranguren, Kooijmans; Judges ad hoc Lauterpacht, Kreća AGAINST: Vice-President Weeramantry Declarations/Opinions Declaration

Judge ad hoc Kreća

Separate Opinion

Judge Koroma, Judge ad hoc Lauterpacht

Dissenting Opinion

Vice-President Weeramantry

Sources of Law UN Charter

Art. 1(3), p. 243–244(1) Art. 2(1), p. 243–244(1) Art. 2(2), p. 243–244(1) Art. 2(3), p. 243–244(1) Art. 2(4), p. 243–244(1), 243–244(1.j) Art. 24(1), p. 243–244(1), 243–246(1.o) Art. 33(1), p. 243–244(1) Art. 51, p. 243–245(1.l, 1.m), 243–246(1.n, 1.o, 1.p) Art. 55, p. 243–244(1) Art. 56, p. 243–244(1)

ICJ Statute

Art. 41, p. 247(2) Art. 48, p. 243

ICJ Rules of Court

Art. 31, p. 243, 251(6) Art. 44, p. 243 Art. 45, p. 243 Art. 49(2), p. 256(23) Art. 79(1), p. 249(4) Art. 80, p. 243, 252(10), 256(26), 257(28), 257(29), 259(38) Art. 80(1), p. 251(6), 251–252(8), 255(22), 256(24), 257(31) Art.80(2), p. 256(24), 257(32) Art. 80(3), p. 251(6), 253–254(16)



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Sources of Law (cont.) ICJ case-law

Current Order of 8 April 1993, p. 247(2), 258(36), 259(46) Order of 13 September 1993, p. 247(2), 258(36) Order of 7 October 1993, p. 247(2) Order of 21 March 1995, p. 249(3) Order of 23 July 1996, p. 249(5), 258(35) Previous United States Diplomatic and Consular Staff in Tehran, [I.C.J. Reports 1979, p. 15(24)], p. 257(28)

UN Resolutions

Security Council resolution 713 (1991), p. 243–244(1.m) 243–246(1.n, 1.o)

Treaties

1907 Hague Regulations on Land Warfare of 1907, p. 243–244(1) 1948 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, p. 243–244(1), 247(2), 247–248(3.1, 3.2,, 3.3, 3.4, 3.5, 3.6, 3.7), 249(4, 5.1), 249–250(5.3), 249–251(5.3, 5.4, 5.5, 5.6), 252(12), 255(21) 1949 Geneva Conventions of 1949, p. 243–244(1) 1977 Additional Protocol I of 1977, p. 243–244(1)

Declaration

1948 Universal Declaration of Human Rights, p. 243–244(1)

Section F – Merits Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43 Date of Judgment: 26 February 2007 Authoritative text: English Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlvedaamor, Bbenouna, Skotnikov; Judges ad hoc Mahiou, Kreća; Registrar Couvreur.

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Table of Contents: I. Qualités II. Identification of the Respondent Party III. The Court’s Jurisdiction: (1) Introduction: the jurisdictional objection of Serbia and Montenegro; (2) History of the status of the FRY with regard to the United Nations; (3) The response of Bosnia and Herzegovina; (4) Relevant past decisions of the Court; (5) The principle of res judicata; (6) Application of the principle of res judicata to the 1996 Judgment; (7) Conclusion: jurisdiction affirmed IV. The Applicable Law: The Convention on the Prevention and Punishment of the Crime of Genocide: (1) The Convention in brief; (2) The Court’s 1996 decision about the scope and meaning of Article IX; (3) The Court’s 1996 decision about the territorial scope of the Convention; (4) The obligations imposed by the Convention on the Contracting Parties; (5) Question whether the Court may make a finding of genocide by a State in the absence of a prior conviction of an individual for genocide by a competent court; (6) The possible territorial limits of the obligations; (7) The Applicant’s claims in respect of alleged genocide committed outside its territory against non-nationals; (8) The question of intent to commit genocide; (9) Intent and “ethnic cleansing”; (10) Definition of the protected group V. Questions of Proof: Burden of Proof, the Standard of Proof, Methods of Proof VI. The Facts invoked by the Applicant, in Relation to Article II; (1) The background; (2) The entities involved in the events complained of; (3) Examination of factual evidence: introduction; (4) Article II (a) killing members of the protected group; Sarajevo: Drina River Valley (a) Zvornik (b) Camps (i) Sušica camp (ii) Foča Kazneno-Popravní Dom camp (iii) Batkovic’ camp; Prijedor (a) Kozarac and Hambarine (b) Camps (i) Omarska camp (ii) Keraterm camp (iii) Trnopolje camp; Banja Luka Manjača camp; Brčko; Luka camp (5) The massacre at Srebrenica (6) Article II (b): causing serious bodily or mental harm to members of the protected group Drina River Valley (a) Zvornik (b) Foča (c) Camps (i) Batkovic’ camp (ii) Sušica camp (iii) Foča Kazneno-Popravní Dom camp – Prijedor (a) Municipality (b) Camps (i) Omarska camp (ii) Keraterm camp (iii) Trnopolje camp – Banja Luka: Manjača camp; Brčko: Luka camp



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(7) Article II (c): deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part: Alleged encirclement, shelling and starvation; Deportation and expulsion; Destruction of historical, religious and cultural property Camps (a) Drina River Valley (i) Sušica camp (ii) Foča Kazneno-Popravní Dom camp (b) Prijedor (i) Omarska camp (ii) Keraterm camp (iii) Trnopolje camp (c) Banja Luka: Manjača Camp (d) Bosanski Šamac (8) Article II (d): imposing measures to prevent births within the protected group; (9) Article II (e): forcibly transferring children of the protected group to another group; (10) Alleged genocide outside Bosnia and Herzegovina; (11) The question of pattern of acts said to evidence an intent to commit genocide VII. The Question of Responsibility for events at Srebrenica under Article III, Paragraph (a), of the Genocide Convention: (1) The alleged admission (2) The test of responsibility (3) The question of attribution of the Srebrenica genocide to the Respondent on the basis of the conduct of its organs (4) The question of attribution of the Srebrenica genocide to the Respondent on the basis of direction or control (5) Conclusion as to responsibility for events at Srebrenica under Article III, paragraph (a), of the Genocide Convention VIII. The Question of Responsibility, in respect of Srebrenica, for Acts enumerated in Article III, Paragraphs (b) to (e), of the Genocide Convention IX. The Question of Responsibility for Breach of the Obligations to Prevent and Punish Genocide: (1) The obligation to prevent genocide; (2) The obligation to punish genocide; X. The Question of Responsibility for Breach of the Court’s Orders Indicating Provisional Measures XI. The Question of Reparation XII. Operative Clause

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Text of the operative paragraph(s) (p. 237, para. 471) THE COURT, (1) by ten votes to five, Rejects the objections contained in the final submissions made by the Respondent to the effect that the Court has no jurisdiction; and affirms that it has jurisdiction, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, to adjudicate upon the dispute brought before it on 20 March 1993 by the Republic of Bosnia and ­Herzegovina; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou; AGAINST: Judges Ranjeva, Shi, Koroma, Skotnikov; Judge ad hoc Kreća (2) by thirteen votes to two, Finds that Serbia has not committed genocide, through its organs or persons whose acts engage its responsibility under customary international law, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou (3) by thirteen votes to two, Finds that Serbia has not conspired to commit genocide, nor incited the commission of genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide; IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou (4) by eleven votes to four, Finds that Serbia has not been complicit in genocide, in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;



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IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Sepúlveda-Amor, Skotnikov; Judge ad hoc Kreća AGAINST: Vice-President Al-Khasawneh; Judges Keith, Bennouna; Judge ad hoc Mahiou (5) by twelve votes to three, Finds that Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou AGAINST: Judges Tomka, Skotnikov; Judge ad hoc Kreća (6) by fourteen votes to one, Finds that Serbia has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide by having failed to transfer Ratko Mladic’, indicted for genocide and complicity in genocide, for trial by the International Criminal Tribunal for the former Yugoslavia, and thus having failed fully to co-operate with that Tribunal; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Mahiou AGAINST: Judge ad hoc Kreća (7) by thirteen votes to two, Finds that Serbia has violated its obligation to comply with the provisional measures ordered by the Court on 8 April and 13 September 1993 in this case, inasmuch as it failed to take all measures within its power to prevent genocide in Srebrenica in July 1995; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Mahiou AGAINST: Judge Skotnikov; Judge ad hoc Kreća

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(8) by fourteen votes to one, Decides that Serbia shall immediately take effective steps to ensure full compliance with its obligation under the Convention on the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as defined by Article II of the Convention, or any of the other acts proscribed by Article III of the Convention, and to transfer individuals accused of genocide or any of those other acts for trial by the International Criminal Tribunal for the former Yugoslavia, and to co-operate fully with that Tribunal; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Mahiou AGAINST: Judge ad hoc Kreća (9) by thirteen votes to two, Finds that, as regards the breaches by Serbia of the obligations referred to in subparagraphs (5) and (7) above, the Court’s findings in those paragraphs constitute appropriate satisfaction, and that the case is not one in which an order for payment of compensation, or, in respect of the violation referred to in subparagraph (5), a direction to provide assurances and guarantees of nonrepetition, would be appropriate. IN FAVOUR: President Higgins; Judges Ranjeva, Shi, Koroma, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Kreća AGAINST: Vice-President Al-Khasawneh; Judge ad hoc Mahiou Declarations/Opinions Dissenting Opinion

Vice-president Al-Khasawneh

Joint Dissenting Opinion

Judges Ranjeva, Shi and Koroma

Separate Opinion

Judge Ranjeva

Joint Declaration

Judges Shi and Koroma

Separate Opinions

Judges Owada and Tomka

Declarations

Judges Keith, Bennouna and Skotnikov

Dissenting Opinion

Judge ad hoc Mahiou

Separate Opinion

Judge ad hoc Kreća



Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia)

Sources of Law UN Charter

Charter, p. 90(115) Art. 1(3), p. 62(64) Art. 2(1), p. 62(64) Art. 2(2), p. 62(64) Art. 2(3), p. 62(64) Art. 2(4), p. 62(64), Art. 24(1), p. 63(64) Art. 33(1), p. 62(64) Art. 51, p. 62(64) Art. 55, p. 62(64) Art. 56, p. 62(64)

ICJ Statute

Art. 24(1), p. 62(63) Art. 31(3), p. 50(6) Art. 34(3), p. 55(30) Art. 35, p. 78(85), 84(100, 101), 86(104), 96(129) Art. 35(1), p. 78(83), 100(141) Art. 35(2), p. 78(83), 86(105), 87(106), 100(141) Art. 36(6), p. 91(117) Art. 38, p. 90(116) Art. 39(3), p. 59(49), 61(59) Art. 40(2), p. 49(2) Art. 40(3), p. 49(2) Art. 43, p. 50(9) Art. 49, p. 57(44), 128(205) Art. 59, p. 90(115), 100(137), 101(138 Art. 60, p. 53(22), 90(114, 115, 116), 91(117), 92(118), 95(126), 100(137) Art. 60(6), p. 100(137), 101(138) Art. 61, p. 54(26), 87(108), 88(110), 89(111), 90(114, 115), 91(117), 92(120), 101(138) Art. 61(1), p. 89(111) Art. 63(1), p. 49(3)

ICJ Rules of Court

Art. 43, p. 49(3) Art. 50, p. 50(9), 52(15) Art. 50(2), p. 50(9), Art. 51, p. 50(9) Art. 52, p. 52(15) Art. 53(2), p. 59(50) Art. 54, p. 54(24) Art. 56, p. 58(45, 46) Art. 56(4), p. 60(54) Art. 57, p. 57(45) Art. 57, p. 56(40) Art. 58, p. 56(40) Art. 61(4), p. 61(60)

91

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Sources of Law (cont.) Art. 62(1), p. 57(44) Art. 62(2), p. 56(40, 41, 42), 57(44) Art. 70, p. 59(49) Art. 70(2), p. 57(42), 61(59) Art. 73, p. 50(4) Art. 79, p. 84(101), 90(114), 97(125) Art. 79(1), p. 51(10) Art. 79(3), p. 51(10) Art. 79(6), p. (15), 622(46) Art. 79(7)(1978 Rules), p. 95(124) Art. 80 (1978 Rules), p. 51(13) Art. 80(1) (1978 Rules), p. 51(13) Art. 80(2) (1978 Rules), p. 51(13) PCIJ case-law

Chorzów Factory, [Judgment No. 11, 1927, P.C.I.J., Series A, No. 13 p. 11–12], p. 95(126), 232(460)

ICJ case-law

Current Judgment of 3 February 2003, p. 55(30), 88(109), 89(111, 112, 113), 90(114, 115), 91(117) Order of 8 April 1993, p. 50(8), 73(67), 86(105), 97(130), 223(435), 230(451, 452), 231(456), 236(467), 236(469), 237(470) Order of 16 April 1993, p. 50(5), Order of 13 September 1993, p. 50(8), 73(67), 230(451, 452, 453), 231(454, 456), 236(469), 237(470) Order of 7 October 1993, p. 50(9) Order of 21 March 1995, p. 51(10) Judgment of 11 July 1996, p. 51(12), 54(26), 55(30), 76(80), 78(85), 84(100), 86(104), 87(107, 108), 88(109), 89(111, 114), 93(120, 121), 94(122, 123, 124), 97(129, 130), 98(132), 99(133, 134, 135), 100(136, 137), 101(140), 104(147), 105(150, 151), 106(152), 107(153, 154), 111(161) Order of 23 July 1996, p. 51(13), 52(15) Order of 17 December 1997, p. 51(13) Order of 22 January 1998, p. 51(14) Order of 11 December 1998, p. 52(16) Order of 10 September 2001, p. 55(27)



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Sources of Law (cont.) Previous Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, [I.C.J. Reports 1992, p. 260(53)], p. 76(76) Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, [I.C.J. Reports 2004, p.328(129)], p. 78(83), 83(97), 85(102), 87(106), 88(109), 89(111, 112), 97(129, 130), 98(131), 99(135) Avena and Other Mexican Nationals (Mexico v. United States of America) [I.C.J. Reports 2004 (I), p. 29(24)], p. 84(101), 110(160) Land and Maritime Boundary between Cameroon and Nigeria, Judgment, [I.C.J. Reports 1999 (I), p. 39(16)], p. 91(117) Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, [I.C.J. Reports 1972, p. 52(13)], p. 84(101), 90(114), 91(118) Corfu Channel, [I.C.J. Reports 1949, p. 23–26], p. 92(118), 95(127), 129(209), 234(463) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 218–9(48)], p. 95(126) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1984, p. 442(113) (1)(c)], p. 96(127, 128), 205(391), 206(394), 208(399, 401), 209(402), 236(468) Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of America), [I.C.J. Reports 1998, p. 29 (51)], p. 96(127) Fisheries Jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v. Iceland) [I.C.J. Reports 1974, p. 20(42)], p. 96(127) Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment, [I.C.J. Reports 2006, pp. 52–53 9127)], p. 105(148), 111(161)

94

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Sources of Law (cont.) Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27–32), p. 106(151) Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, [I.C.J. Reports 2004, p. 174(94)], p. 110(160), 233(460) Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objections, Judgment, [I.C.J. Reports 1952, p. 114], p. 236(468) LaGrand (Germany v. United States of America), [Judgment, I.C.J. Reports 2001, p. 501 (99)], p. 110(160), 230(452) Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), Judgment, [I.C.J. Reports 2002, p. 645(37)], p. 110(160) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 437(101)], p. 128(204), 130(213) United States Diplomatic and Consular Staff in Tehran, Judgment, [I.C.J. Reports 1980, pp. 9–10(11–13)], p. 130(213) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, [I.C.J. Reports 2005, p. 200–201(57–61)], p. 130(213) Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, [I.C.J. Reports 1951, p. 23], p. 111(161), 125(194) Nuclear Tests (Australia v. France), Judgment, [I.C.J. Reports 1974, pp. 263(32)], p. 199(378) Nuclear Tests (New Zealand v. France), Judgment, [I.C.J. Reports 1974, pp. 465(27)], p. 199(378) Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, pp. 573–574 (38–39)], p. 199(378) UN Resolutions

General Assembly Resolutions 47/1 (1992), p. 81(93, 94), 82(95) 47/147 (1992), p. 168(303) 48/153 (1993), p. 154(274) 48/143 (1993), p. 168(301) 49/196 (1994), p. 154(274) 49/10 (1994), p. 168(303) 50/192 (1995), p. 168(301)



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Sources of Law (cont.) 50/193 (1995), p. 154(275), 168(303) 55/12, p. 83(99) 56/83 (2001), p. 116(173) 96 (I) (1946), p. 101(142), 110(161), 125(194) 776 (1992), p. 179(327) 819 (1993), p. 177(324) 821 (1993), p. 83(96) 824 (1993), p. 177(324) 844 (1993), p. 179(327) 836 (1993), p. 179(327) 53/35, p. 224(436) Security Council Resolutions 713 (1991), p. 63(64), 80(92) 752 (1992), p. 202(386) 757 (1992), p. 80(91), 202(386) 762 (1992), p. 202(386) 777 (1992), p. 77(81), 80(92), 81(93), 83(96) 787 (1992), p. 122(190) 798 (1992), p. 168(302) 819 (1993), p. 135(228), 154(274), 168(302), 202(386) 827 (1993), p. 122(190), 168(302) 838 (1993), p. 202(386) 913 (1994), p. 154(275) 941 (1994), p. 154(275), 168(302) 988 (1995), p. 136(229) 1010 (1995), p. 136(229) 1019 (1995), p. 154(275), 168(302) 1034 (1995), p. 168(302) S/RES/1326, p. 83(99) Treaties

1948 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, p. 49(1), 51(12), 55(26), 62(64), 65(65), 71(66), 76(79, 80), 77(81), 85(102), 87(108), 88(109), 93(121), 94(123), 98(132), 99(133), 100(140), 101(142), 102(143, 144), 104(145, 146, 147), 105(149, 151), 107(152, 154), 108(155, 156), 109(158, 159, 160), 110(161), 111(162), 113(165, 166), 114(167, 168, 169), 115(170, 171), 117(174, 175, 176), 118(177, 178, 179), 119(180, 181, 182), 122(190), 124(191), 125(194), 127(200), 142(242), 143(243), 144(245), 154(276), 155(277), 162(291), 166(297), 175(319), 176(320), 186(344), 190(355), 192(361), 193(367, 368), 198(376, 377), 199(379), 200(380, 381, 382), 201(383, 384), 214(413), 215(416), 219(424, 425, 426), 220(429), 221(431), 222(432), 223(434), 226(440, 441, 442), 227(445), 228(447), 229(449, 450), 230(453), 231(458), 232(459), 233(460, 461, 464), 235(465, 466), 237(471)

96

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Sources of Law (cont.) 1919 Treaty between the Allied and Associated Powers (the United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities of 10 September 1919, p. 50(7) 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973, p. 220(429) 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, p. 220(429) 1994 Convention on the Safety of United Nations and Associated Personnel of 9 December 1994, p. 220(429) 1997 International Convention on the Suppression of Terrorist Bombings of 15 December 1997, p. 220(429) 1907 Hague Regulations on Land Warfare of 1907, p. 62(64) 1948 Universal Declaration of Human Rights, p. 62(64) 1949 Geneva Conventions of 1949, p. 600(13) 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War, p. 181(333, 334) 1961 Vienna Convention on the Law of Treaties, p. 110(160), 111(163) 1966 International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966, p. 111(162) 1966 International Covenant on Civil and Political Rights of 16 December 1966, p. 111(162) 1977 Additional Protocol I of 1977, p. 62(64) 1977 Additional Protocol II of 1977, p. 62(64) 1995 Dayton Agreement – General Framework Agreement for Peace in Bosnia and Herzegovina of 14 December 1995, p. 51(11), 135(228), 229(449) 2003 Rome Statute of the International Criminal Court, p. 116(173) UN documents

A/46/915, Ann. II, p. 80(89, 90) A/RES/180(II), p. 111(163) A/RES/177, p. 112(163) A/RES/178(II), p. 112(163)



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97

Sources of Law (cont.) A/47/474, p. 82(94), 141(239) A/47/485, p. 82(95) A/55/528-S/2000/1043, p. 83(98) A/54/549, para. 8., p. 135(228), 136(228, 229), 158(283), 159(285), 212(408) Report of the Ad Hoc Committee on Genocide, 5 April to 10 May 1948, United Nations, Official Records of the Economic and Social Council, Seventh Session, Supplement No. 6, doc. E/794, pp. 2, 18, p. 112(164) A/C.6/217, p. 112(164) A/C.6/220; United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of the 68th meeting, p. 45, p. 112(164) United Nations Secretary-General prepared pursuant to General Assembly resolution 53/35 on the “fall of Srebrenica” (United Nations doc. A/54/549), p. 224(436) Inter(national) legal references

ICTY Case-Law Blagojevic’ (IT-02-60), p. 197(374) Blagojevic’ case, IT-02-60-T, Trial Chamber Judgment, 17 January 2005, p. 156(279, 280), 157(283), 160(286), 161(287) Blagojevic’, IT-02-60-T, Judgment, 17 January 2005, para. 643, p. 162(289) Blagojevic’, IT-02-60-T, Judgment, 17 January 2005, para. 674, p. 165(294) Brdanin case, IT-99-36, Judgment, 1 September 2004, para. 403, p. 149(261) Brdanin, IT-99-36-T, Trial Chamber Judgment, 1 September 2004, para. 303, p. 196(372) Brdanin case IT-99-36-T, Judgment, 1 September 2004, para. 450, p. 152(268) Brdanin, IT-99-36-T, Judgment, 1 September 2004, paras. 640 and 658), p. 182(336) Brdanin case (IT-99-36-T, 1 September 2004, paras. 513–514 and 854–857, p. 174(314) Brdanin (IT-99-36) (on appeal), p. 197(374) Brdanin case (IT-99-36-T, Trial Chamber Judgment, paras. 515–517, p. 172(312)

98

Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia)

Sources of Law (cont.) Brdanin case, IT-99-36-T, Trial Chamber Judgment, 1 September 2004, para. 441, p. 150(263) Brdanin case, IT-99-36-T, Trial Chamber Judgment, paras. 851–852.), p. 173(313) Cˇ ešic’ case, IT-95-10/1-S, Sentencing Judgment, 11 March 2004, paras. 8–17, p. 175(317) Erdemovic’ (IT-96-22) (completed), p. 198(375) Gagovic’ et al., IT-96-23-I, Initial Indictment, 26 June 1996, para. 7.10, p. 190(356) Gagovic’ et al., IT-96-23-I, Initial Indictment, 26 June 1996, para. 9.3, p. 192(363) Galic’, IT-98-29-A, Judgment, 30 November 2006, paras. 107– 109, p. 178(325) Galic’ case, Galic’, IT-98-29-T, Trial Chamber Judgment, 5 December 2003, para. 593, p. 179(328) Galic’ case (IT-98-29-T, Trial Chamber Judgment, 5 December 2003, paras. 578 and 579, p. 144(247, 248) Galic’ case, Galic’, IT-98-29-T, Judgment, 5 December 2003, para. 583, p. 178(325) Jelisic’, IT-95-10-A, Appeals Chamber Judgment, 5 July 2001, para. 37, p. 133(219) Jelisic’ (IT-95-10) (completed), p. 197(374) Jelisic’ case, IT-95-10-T, Trial Chamber Judgment, 14 December 1999, paras. 37–38, p. 153(272) Jokic’ (IT-02–60) (on appeal), p. 198(375) Karadžic’ and Mladic’ (IT-95-5/18), p. 197(374) Karadžic’ and Mladic’, IT-95-5-R61 and IT-95-18-R61, Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, para. 16, p. 181(332), 182(335), 192(364) Kovacˇevic’ and Drljacˇa (IT-97-24), p. 197(374) Krajišnik, IT-00-39-T and 40-T, Trial Chamber Judgment, 27 September 2006, para. 15, p. 138(232) Krajišnik (paragraph 219 above) (on appeal), p. 197(374) Krajišnik IT-00-39-T, transcript of 19 August 2005, pp. 17112– 17132), p. 133(219)



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Sources of Law (cont.) Krnojelac, IT-97-25-T, Judgment, 15 March 2002, para. 440, p. 187(347) Krstic’ (IT-98-33), p. 197(374) Krstic’, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8–11, p. 126(198), 127(199, 200) Krstic’ case, (IT-98-33-A, Judgment, 19 April 2004, para. 90, p. 157(281) Krstic’ case, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 28–33, p. 164(293) Krstic’, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562, p. 123(190), 126(197) Krstic’ Trial Chamber, IT-98-33-T, Judgment, 2 August 2001, para. 87, p. 162(292) Krstic’ case, IT-98-33-T, Judgment, 2 August 2001, p. 155(278) Krstic’, IT-98-33-T, Judgment, 2 August 2001, paras. 426–427, p. 162(289) Krstic’, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 580, p. 186(344) Krstic’ case (IT-98-33-T, Trial Chamber Judgment, 2 August 2001, paras. 551–599 and IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 6–22, p. 166(296) Kunarac et al. case (IT-96-23-T and IT-96-23/1-T, Trial Chamber Judgment, 22 February 2001, paras. 574 and 592), p. 169(306) Kunarac et al. cases, Nos. IT-96-23-T and IT-96-23/1-T, Judgment, 22 February 2001, para. 583), p. 193(365) Kvocˇka et al. case, Kvocˇka et al., IT-98-30/1-T, Trial Chamber Judgment, 2 November 2001, paras. 45 and 55.), p. 188(348) Kvocˇka et al. case (IT-98-30/1-T, Trial Chamber Judgment, paras. 21–50, and 98–108, p. 172(312) Kvocˇka et al. case, (IT-98-30/1-T, Trial Chamber Judgment, 2 November 2001, para. 114), p. 173(313) Mejakic’ (IT-95-4) (genocide-related charges withdrawn), p. 197(374) Miletic’ and Gvero (IT-05-88, part of the Popovic’ et al. proceeding referred to in paragraph 374 (h) above), p. 198(375)

100

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Sources of Law (cont.) Miloševic’, IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 280), p. 225(437) Miloševic’ (IT-02-54), p. 197(374) Miloševic’ Decision on Motion for Judgment of Acquittal IT-0254-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, paras. 159, 160–168, p. 153(273) Miloševic’ case, IT-02-54-T, Decision on Motion for Judgment of Acquittal, 16 June 2004, para. 178), p. 174(315) Miloševic’, IT-02-54-T, Transcript, 16 December 2003, pp. 30494–30495), p. 225(437) Momir Nikolic’ (IT-02-60/1), p. 197(374) Nikolic’, IT-94-2-S, para. 67, p. 146(252) Nikolic’, IT-94-2-S, Sentencing Judgment, 18 December 2003, para. 69, p. 186(346) Nikolic’, IT-94-2-T, Sentencing Judgment, 18 December 2003, paras. 87–90), p. 170(308) Obrenovic’ (IT-02-60/2), p. 197(374) Pandurevic’ and Trbic’ (IT-05-88/1), p. 197(374) Perišic’ (IT-04-81) (pending) p. 198(375) Plavšic’ (IT-00-39 and 40/1) (plea agreement), p. 197(374) Plavšic’ and Sikirica et al. cases (IT-00-40 and IT-95-8, p. 197(374) Plavšic’, IT-00-39-S and 40/1-S, Sentencing Judgment, 27 February 2003, para. 48), p. 189(351) Popovic’, Beara, Drago Nikolic’, Borovcˇanin, Sikirica (IT-95-8) (completed), p. 197(374) Sikirica et al case, IT-97-24-T, Judgment, 31 July 2003, para. 544, p. 151(266) Simic’, IT-95-9-T, Judgment, 17 October 2003, para. 773), p. 189(352) Stakic’ (IT-97-24) (completed), p. 197(374) Stakic’ case (IT-97-24-T, Trial Chamber Judgment, paras. 229– 336, p. 172(312) Stakic’ case (IT-97-24-A, Judgment, 22 March 2006, paras. 20–28, p. 125(195)



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Sources of Law (cont.) Stakic’ case, IT-97-24-T, Trial Chamber Judgment, para. 237, p. 173(313) Stakic’, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519, p. 123(190), 127(199) Stakic’, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 519, p. 181(333) Stakic’ case, IT-97-24-T, Judgment, 31 July 2003, paras. 544 and 546), p. 149(261) Stakic’ case (IT-97-24-T, Trial Chamber Judgment, 31 July 2003, paras. 226–227, p. 151(268) Stakic’, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, paras. 546–561, p. 196(372) Stakic’, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 163), p. 188(349) Stakic’ Judgment, IT-97-24-T, Judgment, 31 July 2003, paras. 208 and 210, p. 150(263) Stakic’ case (IT-97-24-T, Trial Chamber Judgment, 31 July 2003, paras. 226–227, p. 151(268) Stakic’ case, IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 516, p. 167(300) Stakic’ case, (IT-97-24-T, Trial Chamber Judgment, 31 July 2003, para. 242, p. 173(314) Stanišic’ and Simatovic’ case, IT-03-69 Trial Chamber’s decision of 12 April 2006, p. 215(413) Stanišic’ and Simatovic’ (IT-03-69) (pending), p. 198(375) Tadic’ case, Trial Chamber, 7 May 1997, (IT-94-1-T), p. 141(238) Tadic’, IT-94-1-T, Trial Chamber Judgment, 7 May 1997, para. 149, p. 182(335) Tadic’, IT-94-1-T, Judgment, 7 May 1997, para. 198, p. 191(357) Tadic case, IT-94-1-T, Judgment, 7 May 1997, para. 155, p. 150(263) Tadic’ case, IT-94-1-T, Judgment, 7 May 1997, paras. 346–348), p. 171(311) Tadic’ case (IT-94-1-T, Trial Chamber Judgment, 7 May 1997, p. 172(312) Tadic’ case, (IT-94-1-T, Judgment, 7 May 1997, paras. 172–177 (para. 175), p. 173(314)

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Sources of Law (cont.) Tadic’ case (IT-94-1-A, Judgment, 15 July 1999, p. 209(402, 403) Talic’ (IT-99-36/1), p. 197(374) Tolimir (IT-05-88/2), p. 197(374) Župljanin (IT-99-36) (genocide-related charges withdrawn), p. 197(374), p. 197(374) Trial Chamber Judgment of 1 September 2004, IT-99-36-T, Judgment, 1 September 2004, para. 465.) IT-97-25-T, Judgment, 15 March 2002, para. 330, p. 146(254) ICTY IT-95-16-T, Judgment, 14 January 2000, para. 636, p. 122(188) ICTR Case-Law Akayesu, ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 508, p. 191(358) Akayesu case, ICTR-96-4-T, Trial Chamber Judgment, 2 September 1998, para. 731, p. 167(298) Reports Report of the Commission of Experts, Vol. IV, pp. 128–132, p. 170(308) Report of the Commission of Experts, Vol. II, Ann. VI, p. 8, p. 176(323) Report of 28 August 1992, paras. 17–18, p. 177(323) Report of 26 August 1993, para. 15, p. 176(324) Report of the Commission of Experts, Ann. VI, p. 17), p. 176(324) Report of 4 November 1994, paras. 27–28, p. 176(324) Report of 5 May 1992, para. 42, p. 178(327) Report of the Commission of Experts, Vol. I, p. 59, para. 248, p. 192(363) Report of 19 May 1994, paras. 17 et seq., p. 179(327) Report of 28 August 1992, para. 17, p. 179(328) Report of 21 February 1994, para. 8 Report of the Commission of Experts, Vol. I, Ann. IV, pp. 5, 9, 21 ff., p. 183(337) Report of the Commission of Experts, Vol. I, Ann. V, p. 106, p. 183(337)



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Sources of Law (cont.) Report of 17 November 1992, para. 26, p. 183(337) Report of 17 November 1992, para. 26, p. 183(337) Report of the International Law Commission on the work of its Forty-eighth Session, Yearbook of the International Law Commission 1996, Vol. II, Part Two, p. 45–46, para. 12, p. 186(344) Report of 16 January 1995, para. 13, p. 176(324) Report of 5 July 1995, paras. 67–70, p. 176(324) Report of 17 November 1992, para. 42, p. 176(324) Report of 21 February 1994, para. 8, p. 180(329) Report of 21 April 1995, para. 4, p. 180(329) Report of 21 April 1995, para. 24, p. 180(329) Report of 21 April 1995, para. 26, p. 180(329) Report of 4 November 1994, para. 23, p. 180(329) Report of 4 November 1994, para. 21, p. 180(330) Report of 10 February 1993, para. 99, p. 181(331) Report of the Commission of Experts, Vol. I, Ann. IV, pp. 55 et seq., p. 180(331) 1995 Report of the Special Rapporteur of the Commission on Human Rights, dated 22 August 1995 (E/CN.4/1996/9), p. 136(229) 1992 Report of the E/CN.4/1994/47, 17 November 1992, p. 4, para. 14, p. 144(246) Report of the Commission of Experts, Vol. V, Ann. X, p. 9, p. 147(255) Report of the Commission of Experts, Vol. IV, Ann. VIII, p. 62, para. 469, p. 169(306) Report of the Commission of Experts, Vol. IV, Ann. VIII, pp. 62–63, and Ann. X, p. 9, p. 169(306) Report of 17 November 1992, para. 29, p. 147(256) Report of the Commission of Experts (Vol. I, Ann. III, pp. 154–155, p. 147(257), 148(258, 260) Report of 17 November 1992, p. 8, para. 17 (c), p. 148(258) Report of the Commission of Experts, Vol. IV, pt. 4., p. 148(259)

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Sources of Law (cont.) Report of the Commission of Experts (Vol. IV, paras. 370–376, p. 152(270) E/CN.4/1996/36 of 4 March 1996, para. 52, p. 152(270) Vol. V, Ann. X, p. 41), p. 171(311) Vol. IV, Ann. VIII, pp. 225, 231, 233, 238, p. 172(313) Vol. IV, Ann. VIII, pp. 207–222, p. 172(312) Report of the Commission of Experts, Vol. IV, Annex VIII, pp. 53–54, p. 174(316) Vol. IV, Ann. VIII, pp. 93–97, p. 175(317) Vol. IV, Ann. VIII, pp. 251–253, p. 173(314) Vol. IV, Ann. VIII, pp. 50–54, p. 174(315) 1994 Final Report of the United Nations Commission of Experts (S/1994/674/Add.2), p. 122(190) S/35374 (1993), para. 55, Interim Report by the Commission of Experts, p. 122(190) Bihac’: Special Rapporteur’s Report of 28 August 1992, para. 20; Report of the Secretary-General pursuant to resolution 959 (1994), para. 17, p. 179(327) Special Rapporteur’s Report of 16 January 1995, para. 12, p. 179(327) Tuzla: Report of the Secretary-General pursuant to resolutions 844 (1993), 836 (1993) and 776 (1992), paras. 2–4, p. 179(327) Special Rapporteur’s Report of 5 July 1995, p. 179(327) Cerska: Special Rapporteur’s Report of 5 May 1993, paras. 8–17, p. 179(327) Maglaj: Special Rapporteur’s Report of 17 November 1993, para. 93, p. 179(327) International Law Commission Commentary Commentary on Article 17 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, ILC Report 1996, Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 44(5), p. 121(186) Article 4 of the ILC Articles on State Responsibility, p. 202(385), 203(388), 207(398), 208(401), 215(414), 217(420), 233(460)



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Sources of Law (cont.) 1996 Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17, p. 126(198) 2001 ILC Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Report A/56/10, 2001, Commentary on Article 58, para. 3, p. 116(173), 222(431) United States Documents United States State Department document No. 94–11 (Vol. V, Ann. X, para. 387; Vol. IV, Ann. VIII, p. 342 and para. 2884; Vol. I, Ann. III.A, para. 578, p. 145(250), 146(253) United States Dispatch, 19 April 1993, Vol. 4, No. 30, p. 538), p. 147(255) United States Department of State Dispatch of 19 April 1993 (Vol. 4, No. 16), p. 170(307) United States State Department Dispatch, 2 November 1992, p. 806, p. 174(315) United States Department of State, Bureau of Public Affairs, Dispatch, 26 July 1993, Vol. 4, No. 30, pp. 547–548, p. 185(341) Dispatch of the United States Department of State, 19 April 1993, No. 16, p. 262], p. 170(309) Others Michael Rose, Fighting for Peace, 1998, p. 254), p. 178(326) Declaration of Independence adopted by the National Assembly of Montenegro on 3 June 2006, p. 73(67) Art. 60 of the Constitutional Charter of Serbia and Montenegro, p. 73(67) 1992 Declaration by the joint session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro, p. 79(89), 87(106), 99(133) 1992 official Note dated 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, p. 80(90), 97(121) 1992 Letter of the Under-Secretary-General and Legal Counsel of the United Nations addressed a letter to the Permanent Representatives of Bosnia and Herzegovina and Croatia of 29 September 1992, p. 82(95)

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Sources of Law (cont.) 2000 Letter of FR Yugoslavia President to UN SecretaryGeneral, p. 83(98) Arbitral Decision of the German-Polish Mixed Arbitral Tribunal (von Tiedemann case), p. 92(119) Judgment of the International Military Tribunal, Trial of the Major War Criminals, 1947, Official Documents, Vol. 1, p. 223, p. 115(172) United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of the 96th Meeting, p. 355, p. 117(176) United Nations, Official Records of the General Assembly, Third Session, Part I, Sixth Committee, Summary Records of the 131st Meeting, p. 690, p. 118(177) A/C.6/234, p. 123(190) Indictment, Trial of the Major War Criminals before the International Military Tribunal, Official Documents, Vol. 1, pp. 43 and 44, p. 125(193) 1991 Resolution of the Parliament of Bosnia and Herzegovina of 14 October 1991, p. 138(232) Opinion No. 1 of the Arbitration Commission of the Conference on Yugoslavia (the Badinter Commission), p. 3, p. 138(232) “Strategic Goals” articulated by President Karadžic’ at the 16th Session of the FRY Assembly on 12 May 1992, and subsequently published in the Official Gazette of the Republika Srpska (paragraph 371), p. 140(237), 195(371) “The Death of Yugoslavia”, BBC documentary, p. 145(250) “Destruction of Cultural Heritage in Bosnia and Herzegovina, 1992–1996: A Post-war Survey of Selected Municipalities”, Miloševic’, IT-02-54-T, Exhibit Number P486, p. 183(339) Riedlmayer Report, p. 5, p. 183(339), 184(340), 185(342, 343) Council of Europe, Information Report: The Destruction by War of the Cultural Heritage in Croatia and Bosnia-Herzegovina, Parliamentary Assembly doc. 6756, 2 February 1993, paras. 129 and 155, p. 184(341) Council of Europe, Parliamentary Assembly; Second Information Report on War Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina, doc. 6869, 17 June 1993, p. 11, Ann. 38, p. 185(342)



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Sources of Law (cont.) Second report is Balkan Battlegrounds, prepared by the United States Central Intelligence Agency, also published in 2002, p. 213(412) “War Crimes in Bosnia-Herzegovina: UN Cease-Fire Won’t Help Banja Luka”, Human Rights Watch/Helsinki Watch, June 1994, Vol. 6, No. 8, pp. 15–16, p. 185(341) The Humanitarian Law Centre, Spotlight Report, No. 14, August 1994, pp. 143–144, p. 185(341) Amnesty International, “Bosnia and Herzegovina: Living for the Day – Forced expulsions from Bijeljina and Janja”, December 1994, p. 2, p. 180(330) Hannes Tretter et al., “ ‘Ethnic cleansing’ Operations in the Northeast Bosnian-City of Zvornik from April through June 1992”, Ludwig Boltzmann Institute of Human Rights (1994), p. 48, p. 169(305), 181(331)

Representation of Parties Bosnia and Herzegovina Agent

Mr. Sakib Softic’,

Deputy-Agent,

Mr. Phon van den Biesen, Attorney in Amsterdam

Counsel & Advocates

Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of Political Studies, Paris Mr. Thomas M. Franck, Professor at the School of Law and Director, Center for International Studies, New York University Ms. Brigitte Stern, Professor, University of Paris I (Panthéon-Sorbonne) Mr. Luigi Condorelli, Professor at the Faculty of Law of the University of Florence, Ms. Magda Karagiannakis, B.Ec., LL.B., LL.M., Barrister at Law, Melbourne, Australia, Ms. Joanna Korner Q.C., Barrister at Law, London, Ms. Laura Dauban, LL.B. (Hons), Mr. Antoine Ollivier, Temporary Lecturer and Research Assistant, University of Paris X-Nanterre,

Expert Counsel & Advocates

Mr. Morten Torkildsen, BSc., MSc., Torkildsen Granskin og Rådgivning, Norway,

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Bosnia and Herzegovina (cont.) Counsel

H.E. Mr. Fuad Šabeta, Ambassador of Bosnia and Herzegovina to the Kingdom of the Netherlands, Mr. Wim Muller, LL.M., M.A., Mr. Mauro Barelli, LL.M. (University of Bristol), Mr. Ermin Sarajlija, LL.M., Mr. Amir Bajric’, LL.M., Ms. Amra Mehmedic’, LL.M., Ms. Isabelle Moulier, Research Student in International Law, University of Paris I, Mr. Paolo Palchetti, Associate Professor at the University of Macerata, Italy,

Serbia and Montenegro Agents

H.E. Mr. Radoslav Stojanovic’, S.J.D., Head of the Law Council of the Ministry of Foreign Affairs of Serbia and Montenegro, Professor at the Belgrade University School of Law,

Co-agents

Mr. Saša Obradovic’, First Counsellor of the Embassy of Serbia and Montenegro in the Kingdom of the Netherlands, Mr. Vladimir Cvetkovic’, Second Secretary of the Embassy of Serbia and Montenegro in the Kingdom of the Netherlands,

Counsel & Advocates

Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University, Budapest, and Emory University, Atlanta, Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, member of the English Bar, Distinguished Fellow of All Souls College, Oxford, Mr. Xavier de Roux, Maîtrise de droit, avocat à la cour, Paris, Ms. Nataša Fauveau-Ivanovic’, avocat à la cour, Paris, member of the Council of the International Criminal Bar, Mr. Andreas Zimmerman, LL.M. (Harvard), Professor of Law at the University of Kiel, Director of the Walther-Schücking Institute, Mr. Vladimir Djeric’, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovic’& Bogdanovic’, Belgrade, President of the International Law Association of Serbia and Montenegro, Mr. Igor Olujic’, Attorney at Law, Belgrade,



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Serbia and Montenegro (cont.) Assistants

Ms. Sanja Djajic’, S.J.D, Associate Professor at the Novi Sad University School of Law, Ms. Ivana Mroz, LL.M. (Minneapolis), Mr. Svetislav Rabrenovic’, Expert-associate at the Office of the Prosecutor for War Crimes of the Republic of Serbia, Mr. Aleksandar Djurdjic’, LL.M., First Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro, Mr. Miloš Jastrebic’, Second Secretary at the Ministry of Foreign Affairs of Serbia and Montenegro, Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), WaltherSchücking Institute, University of Kiel, Ms. Dina Dobrkovic, LL.B.

CASE CONCERNING THE GABČIKOVO-NAGYMAROS PROJECT (Hungary/Slovakia) General List No.: 92 Mean(s) and date of institution of the case: Special Agreement (2 July 1993) Statement of claim/question: Special Agreement “(1) The Court is requested to decide on the basis of the Treaty and rules and principles of general international law, as well as such other treaties as the Court may find applicable, (a) whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčikovo Project for which the Treaty attributed responsibility to the Republic of Hungary; (b) whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the ‘provisional solution’ and to put into operation from October 1992 this system, described in the Report of the Working Group of Independent Experts of the Commission of the European Communities, the Republic of Hungary and the Czech and Slovak Federal Republic dated 23 November 1992 (damming up of the Danube at river kilometer 1851.7 on Czechoslovak territory and resulting consequences on water and navigation course); (c) what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary. (2) The Court is also requested to determine the legal consequences including the rights and obligations for the Parties, arising from its Judgment on the questions in paragraph 1 of this Article. Basis of jurisdiction invoked: Special Agreement between Hungary and Slovakia of 7 April 1993.

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total Judgment Additional Judgment

Public sittings

2 July 1993 to continues 2 July 1993 to 25 September 1997 Between 3 to 7 March, 24 to 27 March and 10, 11, 14, 15 April 1997 3 September 1998 to continues

Orders Date of Order and Authority

Content

14 July 1993 Court – President Sir Robert Jennings

Fixing of time-limits: 2 May 1994 – Memorial by both Parties 5 December 1994 – Counter-Memorial by both Parties

20 December 1994 President Bedjaoui

Fixing of time-limits: 20 June 1995 – Reply by both Parties

5 February 1997 Court – President Bedjaoui

Unanimous decision to exercise its function with regards to obtain the evidence by visiting a place or locality to which the case relates and adoption of the arrangements proposal made by the Parties in the Protocol of Agreement of 14 November 1995, as subsequently specified, in accordance with the provisions of that Protocol, in the Agreed Minutes dated 3 February 1997

Section B – Judgment Official citation: Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7 Date of Judgment: 25 September 1997 Authoritative text: English Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Skubiszewski; Registrar Valencia-Ospina

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Headnotes: Treaty of 16 September 1977 concerning the construction and operation of the Gabčikovo-Nagymaros System of Locks – “Related instruments”. Suspension and abandonment by Hungary, in 1989, of works on the Project – Applicability of the Vienna Convention of 1969 on the Law of Treaties – Law of treaties and law of State responsibility – State of necessity as a ground for precluding the wrongfulness of an act – “Essential interest” of the State committing the act – Environment – “Grave and imminent peril” – Act having to constitute the “only means” of safeguarding the interest threatened – State having “contributed to the occurrence of the state of necessity”. Czechoslovakia’s proceeding, in November 1991, to “Variant C” and putting into operation, from October 1992, this Variant – Arguments drawn from a ­proposed principle of approximate application – Respect for the limits of the Treaty – Right to an equitable and reasonable share of the resources of an international watercourse – Commission of a wrongful act and prior conduct of a preparatory character – Obligation to mitigate damages – Principle concerning only the calculation of damages – Countermeasures – Response to an internationally wrongful act – Proportionality – Assumption of unilateral control of a shared resource. Notification by Hungary, on 19 May 1992, of the termination of the 1977 Treaty and related instruments – Legal effects – Matter falling within the law of treaties – Articles 60 to 62 of the Vienna Convention on the Law of Treaties – Customary law – Impossibility of performance – Permanent disappearance or destruction of an “object” indispensable for execution – Impossibility of performance resulting from the breach, by the party invoking it, of an obligation under the Treaty – Fundamental change of circumstances – essential basis of the consent of the parties – Extent of obligations still to be performed – Stability of treaty relations – Material breach of the Treaty – Date on which the breach occurred and date of notification of termination – Victim of a breach having itself committed a prior breach of the Treaty – Emergence of new norms of environmental law – Sustainable development – Treaty provisions permitting the parties, by mutual consent, to take account of those norms – Repudiation of the Treaty – Reciprocal non-compliance – Integrity of the rule pacta sunt servanda – Treaty remaining in force until terminated by mutual consent. Legal consequences of the Judgment of the Court – Dissolution of Czechoslovakia – Article 12 of the Vienna Convention of 1978 on Succession of States in respect of Treaties – Customary law – Succession of States without effect on a treaty creating rights and obligations “attaching” to the territory – Irregular state of affairs as a result of failure of both Parties to comply with their treaty obligations – Ex injuria non oritur – Objectives of the Treaty – Obligations overtaken by events – Positions adopted by the parties after conclusion of the Treaty – Good faith negotiations – Effects of the Project on the environment – Agreed solution

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to be found by the Parties – Joint régime – Reparation for acts committed by both Parties – Co-operation in the use of shared water resources – Damages – Succession in respect of rights and obligations relating to the Project – Intersecting wrongs – Settlement of accounts for the construction of the works. Text of the operative paragraph(s) (p. 82, para. 155) THE COURT, (1) Having regard to Article 2, paragraph 1, of the Special Agreement, A. By fourteen votes to one, Finds that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabčikovo Project for which the Treaty of 16 September 1977 and related instruments attributed responsibility to it; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, ParraAranguren, Kooijmans, Rezek; Judge ad hoc Skubiszewski AGAINST: Judge Herczegh

B. By nine votes to six, Finds that Czechoslovakia was entitled to proceed, in November 1991, to the “provisional solution” as described in terms of the Special Agreement; IN FAVOUR: Vice-President Weeramantry; Judges Oda, Guillaume, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Judge ad hoc Skubiszewski AGAINST: President Schwebel; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Rezek

C. By ten votes to five, Finds that Czechoslovakia was not entitled to put into operation, from October 1992, this “provisional solution”; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Kooijmans, Rezek AGAINST: Judges Oda, Koroma, Vereshchetin, Parra-Aranguren; Judge ad hoc Skubiszewski

D. By eleven votes to four, Finds that the notification on 19 May 1992 of the termination of the Treaty of 16 September 1977 and related instruments by Hungary did not have the legal effect of terminating them;

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IN FAVOUR: Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren Kooijmans, Judge ad hoc Skubiszewski AGAINST: President Schwebel; Judges Herczegh, Fleischhauer and Rezek (2) Having regard to Article 2, paragraph 2, and Article 5 of the Special ­Agreement, A. By twelve votes to three, Finds that Slovakia, as successor to Czechoslovakia, became a party to the Treaty of 16 September 1977 as from 1 January 1993; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski AGAINST: Judges Herczegh, Fleischhauer, Rezek

B. By thirteen votes to two, Finds that Hungary and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary measures to ensure the achievement of the objectives of the Treaty of 16 September 1977, in accordance with such modalities as they may agree upon; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Rezek, Judge ad hoc Skubiszewski AGAINST: Judges Herczegh, Fleischhauer

C. By thirteen votes to two, Finds that, unless the Parties otherwise agree, a joint operational régime must be established in accordance with the Treaty of 16 September 1977; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Rezek, Judge ad hoc Skubiszewski AGAINST: Judges Herczegh, Fleischhauer

D. By twelve votes to three, Finds that, unless the Parties otherwise agree, Hungary shall compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on account of the suspension and abandonment by Hungary of works for which it was responsible; and Slovakia shall compensate Hungary for the damage it has sustained on account of the putting into operation of the “provisional solution” by Czechoslovakia and its maintenance in service by Slovakia;

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IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Parra-Aranguren, Kooijmans; Rezek, Judgead hoc Skubiszewski AGAINST: Judges Oda, Koroma, Vereshchetin E. By thirteen votes to two, Finds that, the settlement of accounts for the construction and operation of the works must be effected in accordance with relevant provisions of the Treaty of 16 September 1977 and related instruments, taking due account of such measures as will have been taken by the Parties in application of points 2B and 2C of the present operative paragraph. IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Rezek, Judgead hoc Skubiszewski AGAINST: Judges Herczegh, Fleischhauer Declarations/Opinions Declaration

President Schwebel and Judge Rezek

Separate Opinion

Vice-President Weeramantry and Judges Bedjaoui and Koroma

Dissenting Opinion

Judges Oda, Ranjeva, Herczegh, Fleischhauer, Vereshchetin and Parra-Aranguren and Judge ad hoc Skubiszewski

Sources of Law ICJ Statute

Art. 31(2), p. 13(4) Art. 40(1), p. 10–11(2) Art. 40(3), p. 13(3) Art. 41, p. 12(art. 4.2)

ICJ Rules of Court

Art. 42, p. 13(3) Art. 53(2), p. 13(9) Art. 56(2), p. 13(7) Art. 56(3), p. 13(7) Art. 66, p. 13–14(10) Art. 72, p. 14(12)

PCIJ case-law

Territorial Jurisdiction of the International Commission of the River Oder, Judgment No. 16, 1929, [P.C.I.J., Series A, No. 23, p. 27], p. 56(85) Factory at Chorzów, Jurisdiction Judgment No. 8, 1927, [P.C.I.J., Series A, No. 9, p. 31], p. 67(110) Factory at Chorzów, [P.C.I.J., Series A, No. 17, p. 47], p. 80(149)

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Sources of Law (cont.) ICJ case-law

Legal consequences for States of the Continued Presence of South Africa [I.C.J. Reports 1971, p. 47], p. 38(46) Fisheries Jurisdiction (UK v. Iceland) [I.C.J. Reports 1973, p. 18], p. 38(46) [I.C.J. Reports 1973, p. 63(36)], p. 64(104) Interpretation of the WHO-Egypt Agreement, [I.C.J. Reports 1980, pp. 95–96)], p. 38(46)  [I.C.J. Reports 1980, p. 96(49)], p. 66(109) Interpretation of Peace Treaties (Second phase) [I.C.J. Reports 1950, p. 228], p. 38(46) Legality of the Threat or Use of Nuclear Weapons, [I.C.J. Reports 1996, p. 241–242(29)], p. 41(53), 67–68(112) Admissibility of Hearings of Petitioners by the Committee on South West Africa, [I.C.J. Reports 1956, p. 46], p. 53(75) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1986, p. 127(249)], p. 55(82) North Sea Continental Shelf, [I.C.J. Reports 1969, p. 47(85)], p. 78(141)

Arbitral Awards

Arbitral Award of 9 December 1978 in the case concerning the Air Service Agreement of 27 March 1946 between the USA and France, United Nations, Reports of International Arbitral Awards [(RIAA), Vol. XVIII, p. 443], p. 55(82)

Treaties

1948 Convention concerning the regime of navigation on the Danube of 18 August 1948, p. 20–23(18), 49(64), 71–72(123) 1958 Convention concerning Fishing in the Waters of the Danube of 29 January 1958, p. 20–23(18) 1969 Vienna Convention on the Law of Treaties, p. 36(42), 37(43), 38(46), 59(94, 95), 60(96), 62(99), 62–63(100), 63(102), 63–64(103), 64(104), 66(109), 67(112), 78(142) 1976 Convention of 1976 on the Regulation of Water Management Issues of Boundary Waters, p. 73(125) 1976 Agreement between Hungary and Slovakia of 6 May 1976, p. 20(18), 36(41), 37(45) 1977 Agreement on Mutual Assistance between Hungary and Slovakia of 16 September 1977, p. 24(20), 28(26), 31(30), 35(39)



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Sources of Law (cont.) 1977 Treaty on the Construction and Operation of the Gabčikovo-Nagymaros Barrage System of 16 September 1977, p. 10–11(2), 12(c.2), 15(13), 16(14), 17(15), 19–20(17), 20(18), 20–23(18), 24(20), 24–25(21), 25–27(23), 28(26), 29(28), 30(29), 31(30), 34(38), 35(39, 40), 36(41, 42), 37(43, 44, 45), 39(48, 49), 41(53), 42–43(55), 44–45(56), 45(57), 45–46(57), 46(58), 47(62), 48(63), 49(64), 51(67), 52(70, 72), 53(73, 76, 77), 54(78), 57(90), 58(91, 92), 59(94), 59–60(95), 60(96), 62(97, 98, 99, 100), 63(101, 103), 64(104), 65(105, 106), 66(108, 109), 67(110, 111), 67–68(112), 68(114), 69(117, 118), 70(119, 120), 70–71(122), 71(123), 72(124), 73(125), 74(128), 75(129), 76(132, 135), 77(136, 137, 138), 79(144, 145, 146), 80(147), 81(154), 82(155.1.a, 155.1.d), 82–83(155.2.a, 155.2.b, 155.2.c), 82–84(155.2.e) 1976 Convention of 31 May 1976 on the Regulation of Water Management Issues of Boundary Waters, p. 52(70), 60–61(96) 1978 Vienna Convention of 23 August 1978 on Succession of States in respect of Treaties, p. 70(119, 120, 121, 122), 71(123) 1979 Common Operational Regulations of Plenipotentiaries fulfilling duties related to the construction and operation of the Gabčikovo-Nagymaros Barrage System of 11 October 1979, p. 28(26) 1983 Protocol between Hungary and Slovakia of 10 October 1983, p. 24–25(21), 28(26), 31(30), 33(37) 1989 Protocol between Hungary and Slovakia of 6 February 1989, p. 24–25(21), 28(26), 31(30), 37(44), 39(48) 1989 Protocol between Hungarian and Slovak Plenipotentiaries of 8 and 9 June 1989, p. 32(34) 1992 Rio Convention on Biological Diversity, p. 73(125) 1993 Special Agreement between Hungary and Slovakia of 7 April 1993, p. 10(1, 2), 12(art.6.1), 13(5, 6) 1993 Special Agreement (Compromis) for Submission to the International Court of Justice of the Differences between the Republic of Hungary and the Slovak Republic concerning the Gabčikovo-Nagymaros Project of 7 April 1993, p. 16(14), 27(25), 28(26), 29(27), 46(59, 60), 50(66), 53(73, 74), 57(88, 89), 62(98), 69(115, 116, 118), 75(130), 75–76(131), 77(139), 81(151), 82(155.1, 155.1.b), 82–83(155.2) 1995 Protocol of Agreement between Hungary and Slovakia of 14 November 1995, p. 13–14(10)

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Sources of Law (cont.) 1995 Agreement between Hungary and Slovakia concerning Certain Temporary Technical Measures and Discharges in the Danube and Mosoni branch of the Danube of 19 April 1995, p. 27–28(25) 1997 Agreed Minutes between Hungary and Slovakia supplementing the Protocol of Agreement of 3 February 1997, p. 13–14(10) 1997 Convention of 21 May 1997 on the Law of the NonNavigational Uses of International Watercourses, p. 56(85), 80(147) Declaration

Declaration of Hungary of 19 May 1992, p. 15(13), 45(57)

Inter(national) legal references

Report of the Working Group of Independent Experts of the Commission of the European Communities, the Republic of Hungary and the Czech and Slovak Federal Republic of 23 November 1992, p. 10–11(2), 50(65, 66) Notification of Hungary of 19 May 1992 of the termination of the Treaty of 1977, p. 12(c.2), 15–16(13), 16–17(14), 57(89), 58(91), 62(98), 66(108), 69(115, 117), 82(155.1.d) Resolution of Hungary suspending works at Nagymaros of  13 May 1989, p. 31(32)  20 July 1989, p. 33(36)  27 October 1989, p. 33(37) Resolution of Hungary for the opening of negotiations with Czechoslovakia of 20 December 1990, p. 34(38) Resolution of Hungary terminating the 1977 Treaty of 24 March 1992, p. 57(90) Report of the Hungarian Academy of Sciences of 23 June 1989, p. 43–44(56)

ILC Yearbooks

Draft Articles on State Responsibility, [ILC Yearbook 1980, Vol. II, Part 2, p. 32], p. 38–39(47), [ILC Yearbook 1980, Vol. II, Part 2, p. 34], p. 39–40(50) [ILC Yearbook 1980, Vol. II, Part 2, p. 49(31)], p. 45(57) [ILC Yearbook 1980, Vol. II, Part 2, p. 49(32)], p. 41(53) [ILC Yearbook 1980, Vol. II, Part 2, p. 49(33)], p. 41–42(54) [ILC Yearbook 1993, Vol. II, Part 2, p. 57(14)], p. 54(79)

UN Documents

Official Records of the General Assembly, Fifty-first Session, [Supplement No. 10(A/51/10), p. 141], p. 54(79) [Supplement No. 10 (A/51/10), pp. 144–145], p. 55(83)



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Sources of Law (cont.) Official Records of the UN Conference on the Law of Treaties, [First Session, Vienna, 26 March – 24 May 1968, doc. A/CONF.39/11, Summary Records of the plenary meetings and of the meeting of the Committee of the Whole, 62nd Meeting of the Committee of the Whole, pp. 361–365], p. 63(102) Official Records of the UN Conference on the Succession of States in respect of Treaties, [Vol. III, doc.A/CONF.80/16/ Add. 2, p. 34], p. 70–71(122) [Vol. II, doc.A/CONF.80/16/Add.2, p. 27(2)]. p. 71–72(123) UN General Assembly doc. A/51/869 of 11 April 1997, p. 80(147) Others

Joint Contractual Plan between Hungary and Slovakia, p. 20(18), 23(19), 24(20), 28(26), 31(30), 35(40), 36(41), 39(48), 42(55), 44–45(56), 56(86), 65(107), 67(112), 77(137)

Representation of Parties Hungary Agent & Counsel

H.E. Mr. György Szénási, Ambassador, Head of the International Law Department, Ministry of Foreign Affairs

Co-Agent

H.E. Mr. Dénes Tomaj, Ambassador of the Republic of Hungary to the Netherlands

Counsel & Advocates

Mr. James Crawford, Whewell Professor of International Law, University of Cambridge Mr. Pierre-Marie Dupuy, Professor at the University Panthéon-Assas (Paris II) and Director of the Institut des hautes études internationales of University of Paris X-Nanterre Mr. Alexandre Kiss, Director of Research, Centre national de la recherche scientifique (retd.) Mr. László Valki, Professor of International Law, Eötvös Loránd University, Budapest Mr. Boldizsár Nagy, Associate Professor of International Law, Eötvös Loránd University, Budapest Mr. Philipe Sands, Reader in International Law, University of London, School of Oriental and African Studies, and Global Professor of Law, New York University Ms. Katherine Gorove, consulting Attorney

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Hungary (cont.) Advocates

Dr. Howard Wheater, Professor of Hydrology, Imperial College, London Dr. Gábor Vida, Professor of Biology, Eötvös Loránd University, Budapest, Member of the Hungarian Academy of Sciences Dr. Roland Carbiener, Professor emeritus of the University of Strasbourg Dr. Klaus Kern, consulting Engineer, Karlsruhe

Advisers

Mr. Edward Helgeson Mr. Stuart Oldham Mr. Péter Molnár

Technical Advisers

Dr. Gyöorgy Kovács Mr. Timothy Walsh Mr. Zoltán Kovács

Assistant

Dr. Attila Nyikos

Translator

Mr. Axel Gosseries, LL.M

Secretaries

Ms. Éva Kocsis Ms. Katinka Tompa

Slovakia Agent

H.E. Dr. Peter Tomka, Ambassador, Legal Adviser of the Ministry of Foreign Affairs

Co-Agent, Counsel & Advocate

Dr. Václav Mikulka, Member of the International Law Commission

Counsel

Mr. Derek W. Bowett, C.B.E., Q.C., F.B.A., Whewell Professor emeritus of International Law at the University of Cambridge, former Member of the International Law Commission

Counsel & Advocates

Mr. Stphen C. McCaffrey, Professor of International Law at the University of the Pacific, McGeorge School of Law, Sacramento, United States of America, former Member of the International Law Commission Mr. Alain Pellet, Professor at the University of Paris X-­Nanterre and at the Institute of Political Studies, Paris, Member of the International Law Commission



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Slovakia (cont.) Mr. Walter D. Sohier, Member of the Bar of the State of New York and of the District of Columbia Sir Arthur Watts, K.C.M.G., Q.C., Barrister, Member of the Bar of England and Wales Mr. Samuel S. Wordsworth, avocat á la cour d’appel de Paris, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley, Paris Counsel & Experts

Mr. Igor Mucha, Professor of Hydrogeology and Former Head of the Groundwater Department at the Faculty of Natural Sciences of Comenius University in Bratislava Mr. Karra Venkateswara Rao, Director of Water Resources Engineering, Department of Civil Engineering, City University, London Mr. Jens Christian Refsgaard, Head of Research and Development, Danish Hydraulic Institute

Counsellors

Dr. Cećillia Kandráová, Director of Department, Ministry of Foreign Affairs Mr. Ludĕk Krajhanzl, Attorney at Law, Vyroubal Krajhanzl Skácel and Partners, Prague Mr. Miroslav Liška, Head of the Division for Public Relations and Expertise, Water Resources Development State Enterprise, Bratislava Dr. Peter Vršanský, Minister-Counsellor, Chargé d’affaires a.i., of the Embassy of the Slovak Republic, The Hague

Legal Assistants

Miss Anouche Beaudouin, allocataire de recherche at the University of Paris X-Nanterre Ms. Cheryl Dunn, Frere Cholmeley, Paris Ms. Nikoleta Glindová, attaché, Ministry of Foreign Affairs Mr. Drahoslav Štefánek, attaché, Ministry of Foreign Affairs

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)

General List No.: 94 Mean(s) and date of institution of the case: Application (20 March 1994) Submission(s) of the Applicant: Cameroon asked the Court to adjudge and declare: (a) That the land boundary between Cameroon and Nigeria takes the following course: – from the point designated by the co-ordinates 13° 05' north and 14" 05' east, the boundary follows a straight line as far as the mouth of the Ebeji, situated at the point located at the co-ordinates 12° 32' 17" north and 14° 12' 12" east, as defined within the framework of the LCBC and constituting an authoritative interpretation of the Milner-Simon Declaration of 10 July 1919 and the Thomson-Marchand Declarations of 29 December 1929 and 31 January 1930, as confirmed by the Exchange of Letters of 9 January 1931; in the alternative, the mouth of the Ebeji is situated at the point located at the Co-ordinates 12° 31' 12" north and 14° 11' 48" east; – from that point it follows the course fixed by those instruments as far as the ‘very prominent peak’ described in paragraph 60 of the Thomson-Marchand Declaration and called by the usual name of ‘Mount Kombon’; – from ‘Mount Kombon’ the boundary then runs to ‘Pillar 64' mentioned in paragraph 12 of the Anglo-German Agreement of Obokum of 12 April 1913 and follows, in that sector, the course described in Section 6 (1) of the British Nigeria (Protectorate and Cameroons) Order in Council of 2 August 1946; – from Pillar 64 it follows the course described in paragraphs 13 to 21 of the Obokum Agreement of 12 April 1913 as far as Pillar 114 on the Cross River; – thence, as far as the intersection of the straight line from Bakassi Point to King Point with the centre of the navigable channel of the Akwayafe, the boundary is determined by paragraphs XVI to XXI of the Anglo-German Agreement of 11 March 1913. (b) That, in consequence, inter alia, sovereignty over the Peninsula of Bakassi and over the disputed parcel occupied by Nigeria in the area of Lake Chad, in particular over Darak and its region, is Cameroonian.



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(c) That the boundary of the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria takes the following course: – from the intersection of the straight line from Bakassi Point to King Point and the centre of the navigable channel of the Akwayafe to ‘point 12', that boundary is confirmed by the ‘compromise line’ entered on British Admiralty Chart No. 3433 by the Heads of State of the two countries on 4 April 1971 (Yaoundé II Declaration) and, from that ‘point 12' to ‘point G’, by the Declaration signed at Maroua on 1 June 1975; – from point G the equitable line follows the direction indicated by Points G, H (co-ordinates 8° 21' 16" east and 4° 17' north, I (7° 55' 40" east and 3° 46' north), J (7° 12' 08" east and 3° 01' 05" north) and K (6° 45' 22" east and 3° 01' 05" north), and continues from K up to the outer limit of the maritime zones which international law places under the respective jurisdiction of the two parties. (d) That in attempting to modify unilaterally and by force the courses of the boundary defined above under (a) and (c), the Federal Republic of Nigeria has violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris) as well as its legal obligations concerning the land and maritime delimitation. (e) That by using force against the Republic of Cameroon and, in particular, by militarily occupying parcels of Cameroonian territory in the area of Lake Chad and the Cameroonian Peninsula of Bakassi, and by making repeated incursions throughout the length of the boundary between between the two countries, the Federal Republic of Nigeria has violated and is violating its obligations under international treaty law and customary law. (f ) That the Federal Republic of Nigeria has the express duty of putting an end to its administrative and military presence in Cameroonian territory and, in particular, of effecting an immediate and unconditional evacuation of its troops from the occupied area of Lake Chad and from the Cameroonian Peninsula of Bakassi and of refraining from such acts in the future. (g) That in failing to comply with the Order for the indication of provisional measures rendered by the Court on 15 March 1996 the Federal Republic of Nigeria has been in breach of its international obligations.

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(h) That the internationally wrongful acts referred to above and described in detail in the written pleadings and oral argument of the Republic of Cameroon engage the responsibility of the Federal Republic of Nigeria. (i) That, consequently, on account of the material and moral injury suffered by the Republic of Cameroon reparation in a form to be determined by the Court is due from the Federal Republic of Nigeria to the Republic of Cameroon. The Republic of Cameroon further has the honour to request the Court to permit it, at a subsequent stage of the proceedings, to present an assessment of the amount of compensation due to it as reparation for the injury suffered by it as a result of the internationally wrongful acts attributable to the Federal Republic of Nigeria. The Republic of Cameroon also asks the Court to declare that the counterclaims of the Federal Republic of Nigeria are unfounded both in fact and in law, and to reject them.” Intervention by Equatorial Guinea: Equatorial Guinea stated inter alia: “[Wle ask the Court not to delimit a maritime boundary between Cameroon and Nigeria in areas lying closer to Equatorial Guinea than to the coasts of the two Parties or to express any opinion which could prejudice our interests in the context of our maritime boundary negotiations with our neighbours . . . Safeguarding the interests of the third State in these proceedings means that the delimitation between Nigeria and Cameroon decided by the Court must necessarily remain to the north of the median line between Equatorial Guinea’s Bioko Island and the mainland.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 March 1994 to 10 October 2002

Interim Measures of Protection

12 February 1996 to 15 March 1996 5–6, 8 March 1996



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Duration and Public sittings (cont.) Preliminary objection

Duration (from – to)

Public sittings

13 December 1995 to 11 June 1998

Between 2 and 11 March 1998

Permission for 30 June 1999 to 21 October 1999 intervention

None

Merits

18 February to 21 March 2002

21 October 1999 to 10 October 2002

Orders Date of Order and Authority

Content

16 June 1994 Fixing of time-limits for Filing of written statements and Court – President Bedjaoui indication of no objection of an additional application filed by Cameroon which was not objected by Nigeria 16 March 1995 – Memorial of Cameroon 18 December 1995 – Counter-Memorial of Nigeria 10 January 1996 President Bedjaoui

Fixing of time-limit to file written statement of observations on preliminary objection of Nigeria 15 May 1996 – Cameroon

15 March 1996 Please refer section B Court – President Bedjaoui 30 June 1998 Fixing of time-limits: Court – President Schwebel 31 March 1999 – Counter-Memorial of Nigeria 3 March 1999 Extension of time-limits: Court – President Schwebel From 31 March to 31 May 1999 – Counter-Memorial of Nigeria 30 June 1999 Admissibility of counter-claims of Nigeria, decision and Court – President Schwebel fixing of dates for submission of Reply by Cameroon and Rejoinder by Nigeria 21 October 1999 Please refer Section D Court – President Schwebel 20 February 2001 Authorisation of additional pleading by Cameroon Court-President Guillaume relating to the counter-claims of Nigeria and fixing of 4 July 2011 as the time-limit for the filing of the pleading

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Request for extension of time-limits State Party

Remark

Nigeria (1 time)

Request to extend filing of Counter-Memorial for two months in the first instance and reserves right for further extension in view of the Court’s judgment on the Request for Interpretation – Objection by Cameroon

Section B – Provisional Measures Official citation: Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 13 Date of Order: 15 March 1996 Authoritative text: French Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren; Judges ad hoc Mbaye, Ajibola; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 24, para. 49) The Court, indicates, pending a decision in the proceedings instituted as aforesaid, the following provisional measures: (1) Unanimously, Both parties should ensure that no action of any kind, and particularly no action by their armed forces, is taken which might prejudice the rights of the other in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before it; (2) By sixteen votes to one, Both Parties should observe the agreement reached between the Ministers for Foreign Affairs in Kara, Togo, on 17 February 1996, for the cessation of all hostilities in the Bakassi Peninsula; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Mbaye AGAINST: Judge ad hoc Ajibola



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(3) By twelve votes to five, Both parties should ensure that the presence of any armed forces in the Bakassi Peninsula does not extend beyond the positions in which they were situated prior to 3 February 1996; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Mbaye AGAINST: Judges Shahabuddeen, Weeramantry, Shi, Vereshchetin, Judge ad hoc Ajibola (4) By sixteen votes to one, Both Parties should take all necessary steps to conserve evidence relevant to the present case within the disputed area; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Mbaye AGAINST: Judge ad hoc Ajibola (5) By sixteen votes to one, Both Parties should lend every assistance to the fact-finding mission which the Secretary-General of the United Nations has proposed to send to the Bakassi Peninsula. IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Mbaye AGAINST: Judge ad hoc Ajibola Declarations/Opinions Declaration

Judges Oda, Shahabuddeen, Ranjeva and Koroma; Judge ad hoc Mbaye

Joint Declaration

Judges Weeramantry, Shi and Vereshchetin

Separate Opinion

Judge ad hoc Ajibola

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Sources of Law ICJ Statute

Art. 31(3), p. 17(15) Art. 36(2), p. 14(2), 20(28), 21(31) Art. 40(3), p. 17(13) Art. 41, p. 13, 17(17), 21(34), 22(41) Art. 48, p. 13

ICJ Rules of Court

Art. 73, p. 13, 17(17), 21(34) Art. 73(2), p. 18(19)(21) Art. 74, p. 13 Art. 74(3), p. 18(22) Art. 75, p. 13 Art. 75(2), p. 24(47) Art. 79(3), p. 17(14)

PCIJ case-law

Legal Status of the South-Eastern Territory of Greenland, [P.C.I.J., Series A/B, No. 48, p. 285], p. 22(40)

ICJ case-law

Frontier Dispute, [I.C.J. Reports 1986, p. 9(17)], p. 22(40) [I.C.J. Reports 1986, p. 9(18)], p. 22–23(41)

Declarations

Nigerian declaration under Art. 36(2) of the Court Statute of 3 September 1965, p. 20(28) Cameroonian declaration under Art. 36(2) of the Court Statute of 3 March 1994, p. 20(28)

Inter(national) legal references

Communiqué issued by the Minister of Foreign Affairs of Cameroon, Nigeria and Togo of 17 February 1996 (Agreement), p. 22(37), 24(49)

Section C – Preliminary Objections Official citation: Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 13 Date of Judgment: 11 June 1998 Authoritative text: French Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Mbaye, Ajibola; Registrar Valencia-Ospina Headnotes: (1) Optional Clause (Article 36, paragraph 2, of Statute) – Deposit of Declaration with United Nations Secretary-General (Article 36, paragraph 4, of



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Statute) – Transmission of copy by Secretary-General to States parties to Statute – Interval between deposit of Declaration and filing of Application – Alleged abuse of Optional Clause system – Date of establishment of consensual bond under Article 36, paragraph 2, of Statute – Res Judicata – Article 59 of Statute. Articles 16, 24 and 78 of Vienna Convention on the Law of Treaties. Withdrawal of declarations of acceptance of compulsory jurisdiction – Reasonable period of notice – Question whether such period should be required for deposit of declarations. Whether a State subscribing to Optional Clause and filing an application shortly thereafter has obligation to inform prospective respondent State – Principle of good faith. Condition of reciprocity – Reservation ratione temporis. (2) Asserted duty to resort exclusively to bilateral machinery – Estoppel – Principle of good faith – Rule pacta sunt servanda – Whether exhaustion of diplomatic negotiations is precondition for referral to the Court. (3) Whether Lake Chad Basin Commission has exclusive jurisdiction for settlement of boundary disputes – Arrangements or agencies within meaning of Article 52 of United Nations Charter – Estoppel – Claim that the Court should decline merits of submissions for reasons of judicial propriety. (4) Boundary terminating in a tripoint in Lake Chad – Possible effect on legal interests of third States. (5) Question relating to the existence of a boundary dispute – Determination of the existence of a dispute. (6) Presentation of facts in an application – Requirements of Article 38, paragraph 2, of Rules of Court – Meaning of “succinct”. (7) Determination of title to a peninsula prior to maritime delimitation – Discretionary power of the Court concerning sequence in which it settles issues before it – Alleged absence of sufficient action by Parties to effect delimitation by agreement on basis of international law – Seisin based on declarations made under Article 36, paragraph 2, of Statute – Sufficiently precise character of a dispute. (8) Maritime delimitation which may involve rights and interests of third States – Whether objection raised has exclusively preliminary character (Arti­ cle 79, paragraph 7, of Rules of Court).

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Text of the operative paragraph(s) (p. 325, para. 118) THE COURT, (1) (a) By fourteen votes to three, Rejects the first preliminary objection; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola (b) By sixteen votes to one, Rejects the second preliminary objection; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Mbaye, Ajibola; AGAINST: Judge Koroma (c) By fifteen votes to two, Rejects the third preliminary objection; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye; AGAINST: Judge Koroma, Judge ad hoc Ajibola (d) By thirteen votes to four, Rejects the fourth preliminary objection; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Kooijmans, Rezek; Judge ad hoc Mbaye AGAINST: Judges Oda, Koroma, Parra-Aranguren; Judge ad hoc Ajibola (e) By thirteen votes to four, Rejects the fifth preliminary objection; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye AGAINST: Judges Oda, Koroma, Vereshchetin; Judge ad hoc Ajibola



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(f ) By fifteen votes to two; Rejects the sixth preliminary objection; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye AGAINST: Judge Koroma, Judge ad hoc Ajibola (g) By twelve votes to five, Rejects the seventh preliminary objection; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, ParraAranguren, Rezek; Judge ad hoc Mbaye AGAINST: Judges Oda, Koroma, Higgins, Kooijmans; Judge ad hoc Ajibola (2) By twelve votes to five, Declares that the eighth preliminary objection does not have, in the circumstances of the case, an exclusively preliminary character; IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, ParraAranguren, Rezek; Judge ad hoc Mbaye AGAINST: Judges Oda, Koroma, Higgins, Kooijmans; Judge ad hoc Ajibola (3) By fourteen votes to three, Finds that, on the basis of Article 36, paragraph 2, of the Statute, it has jurisdiction to adjudicate upon the dispute; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola (4) By fourteen votes to three, Finds that the Application filed by the Republic of Cameroon on 29 March 1994, as amended by the Additional Application of 6 June 1994, is admissible. IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola

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Declarations/Opinions Separate Opinion

Judges Oda, Vereshchetin, Higgins, Parra-Aranguren and Kooijmans

Dissenting Opinion

Vice-President Weeramantry, Judge Koroma, and Judge ad hoc Ajibola

Sources of Law UN Charter

Art. 2(2), p. 296(38) Art. 33, p. 302–303(56) Art. 52, p. 306(66) Art. 52(1), p. 306(67) Art. 52(2), p. 306(67) Art. 53, p. 306(67) Art. 95, p. 307(68) Art. 102, p. 290(23–24), 300(47)

ICJ Statute

Art. 31(3), 280(9) Art. 36, p. 291(25), 292(26), 300(46), 302–303(56) Art. 36(1), p. 321(109) Art. 36(2), p. 279(1), 284(18.1), 285(18.2), 287(19–1.1–1.2), 288(3.2), 290(22), 291(25), 292(27), 293–294(31), 298(–299(43), 300(45), 304(62), 321–322(109) Art. 36(4), p. 291(25), 292(27), 293(29–30) Art. 38, p. 321(108) Art. 40(2), p. 279(2) Art. 40(3), p. 280(6) Art. 59, p. 290(24), 292(28), 322–323(113–114)

ICJ Rules of Court

Art. 38, p. 317(96) Art. 38(2), p. 317(97), 318(98–99), 319(100) Art. 53(2), p. 280(14) Art. 56, p. 280(13) Art. 56(1), p. 280(12) Art. 79, p. 321(107)

PCIJ case-law

Mavrommatis Palestine Concessions, Judgment No. 2, 1924, [P.C.I.J., Series A, No. 2, p. 11], p. 314(87) Factory at Chorzów, Merits, Judgment No. 13, 1928, [P.C.I.J., Series A, No. 17, p. 30], p. 296(38) Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 12 and 1932, [P.C.I.J., Series A/B, No. 46, p. 167], p. 296(38)



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Sources of Law (cont.) ICJ case-law

Interpretation of Peace Treaties, (First Phase), [Advisory Opinion: I.C.J. Reports 1950, p. 74], p. 314–315(87) Rights of US Nationals in Morocco, [I.C.J. Reports 1952, p. 212], p. 296(38) Anglo-Iran Oil Company, [I.C.J. Reports 1952, p. 103], p. 298(43) [I.C.J. Reports 1952, p. 104 & 105], p. 299(44), 300(45) Monetary Gold, [I.C.J. Reports 1954, p. 19], p. 309–310(75) [I.C.J. Reports 1954, p. 32], p. 311–312(79) Certain Norwegian Loans, [I.C.J. Reports 1957, p. 23&24], p. 298(43) Right of Passage over Indian Territory, [I.C.J. Reports 1957, p. 147], p. 290(23–24), 293(29), 293–294(31), 295–296(35) [I.C.J. Reports 1957, p. 146], p. 291(25), 297(39) [I.C.J. Reports 1957, pp. 146–147], p. 292(26) [I.C.J. Reports 1957, p. 145 & 147], p. 298–299(43) Interhandel, [I.C.J. Reports 1959, p. 23], p. 298–299(43) Temple of Preah Vihear, [I.C.J. Reports 1961, p. 31], p. 292(27) South-West Africa, [Advisory Opinion: I.C.J. Reports 1962, p. 328], p. 314–315(87) Northern Cameroon, [I.C.J. Reports 1963, p. 37–38], p. 308(72), 314(87), [I.C.J. Reports 1963, p. 28], p. 318(99) North Sea Continental Shelf (Federal Republic Germany v. Denmark and Federal Republic Germany v. The Netherlands, [I.C.J. Reports 1969, p. 26(30)], p. 303(57) Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), [I.C.J. Reports 1973, p. 18], p. 296(38) Nuclear Tests cases (Australia v. France, New Zealand v. France), [I.C.J. Reports 1974, pp. 268 & 473], p. 296(38) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 12(29)], p. 302–303(56) Continental Shelf, [I.C.J. Reports 1981, p. 3], p. 322–323(113) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 392], p. 292(27), 294–295(32–33) [I.C.J. Reports 1984, p. 412(45)], p. 292(27)

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Sources of Law (cont.) [I.C.J. Reports 1984, p. 420(63)], p. 293(30), 295(33) [I.C.J. Reports 1984, p. 420(65)], p. 295(33) [I.C.J. Reports 1984, p. 419(62)], p. 298–299(43) [I.C.J. Reports 1984, p. 420–421(64)], p. 298–299(43) [I.C.J. Reports 1984, p. 440], p. 307(68) [I.C.J. Reports 1984, p. 427(80)], p. 318–319(99) [I.C.J. Reports 1984, p. 437(101)], p. 319(101) Continental Shelf, [I.C.J. Reports 1984, p. 3], p. 322–323(113) Frontier Dispute, [I.C.J. Reports 1986, p. 577(46)], p. 309– 310(75), 310–311(76), 313(81) [I.C.J. Reports 1986, p. 554], p. 322–323(113) Applicability of the Obligation to Arbitrate under Section 21 of the UN HQs Agreement of 26 June 1947, Advisory Opinion, [I.C.J. Reports 1988, p. 27(35)], p. 314(87) Border and Transboundary Armed Actions, [I.C.J. Reports 1988, p. 105], p. 296(38) [I.C.J. Reports 1988, p. 105(94)], p. 297(39) Land, Island and Maritime Frontier Dispute, [I.C.J. Reports 1990, p. 118(63)], p. 303(57) Certain Phosphate Lands in Nauru, I.C.J. Reports 1992, p. 261(55)], p. 311–312(79) [I.C.J. Reports 1992, p. 261–262(55)], p. 324(116) Territorial Dispute, [I.C.J. Reports 1994, p. 9], p. 302–303(56), 312(80), East Timor, [I.C.J. Reports 1995, p. 104–105(34)], p. 311–312(79) [I.C.J. Reports 1995, p. 99–100(22)], p. 314(87) [I.C.J. Reports 1995, p. 101(26)], p. 324(116) [I.C.J. Reports 1995, p. 101(26)], p. 324(116) Lockerbie case (Libya v. UK), [I.C.J. Reports 1998, p. 44], p. 318(99) Lockerbie case (Libya v. USA), [I.C.J. Reports 1998, p. 130(43)], p. 318(99) Arbitral Awards

Arbitral Award of 7 September 1910 in the North Atlantic Fisheries case (UN, Reports of International Arbitral Awards, Vol. XI, p. 188), p. 296(38)

General Assembly Resolutions

1608 (XV) of 21 April 1961, p. 308(72)



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Sources of Law (cont.) Treaties

1913 Anglo-German Agreement (Protocol) of Obokum of 12 April 1913, p. 283(18), 301(52) 1913 Anglo-German Agreement of 11 March 1913, p. 283(18) 1919 Franco-British Declaration of 10 July 1919, p. 283(18) 1964 Agreement between Cameroon, Chad, Niger and Nigeria of 22 May 1964, p. 304(64), 307(70) 1969 Vienna Convention on the Law of Treaties of 23 May 1969, p. 293(29, 31), 293–294(31), 296(38) 1982 Law of the Sea Convention of 1982, p. 319–320(104–105), 321(108–109)

Declarations

Nigerian Declaration under Art. 36(2) of Statute of 3 September 1965, p. 287(1.1), 290(22), 298(41), 298–299(43), 300(45–46), 302–303(56) Declaration by delegates from Cameroon and Nigeria of 14 August 1970, p. 301(52) Declaration signed by the Heads of States of Cameroon and Nigeria at Maroua on 1 June 1975, p. 283(18), 301–302(52), 302(54) Cameroonian Declaration under Art. 36(2) of Statute of 3 March 1994, p. 290(22–23), 294–295(32), 297(40), 302–303(56) Thomson-Marchand Declaration, p. 283(18)

Inter(national) legal references

Compromise line entered on the British Admiralty Chart No. 3343 by the Heads of State of Cameroon and Nigeria on 4 April 1971 (Yaoundé Declaration), p. 283(18) British Nigeria (Protectorate and Cameroons) Order in Council of 2 August 1946, p. 283(18) Joint Communiqué by Foreign Ministers of Cameroon and Nigeria of 29 August 1991, p. 302(54)

ILC Yearbooks

ILC Yearbook 1996, Vol. II, p. 271, p. 293–294(31) ILC Yearbook 1996, Vol. II, p. 201, p. 293–294(31)

UN Documents

Journal of the United Nations, Friday 4 March 1994, No. 1994/43 (Part II), p. 297(40)

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Sources of Law (cont.) Others

Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June–24 July 1920 with annexes p. 679, 725–726], p. 302–303(56) Statute of the Lake Chad Basin Commission, p. 304(61, 64) Agreement between Experts of Cameroon and Nigeria to adopt “as working documents” various bilateral conventions and agreements concluded between Germany, France and the UK between 1906 and 1931, p. 305(65)

Representation of Parties Cameroon Agent

H.E. Mr. Laurent Esso, Minister of Justice, Keeper of the Seals

Co-Agents

Mr. Douala Moutomé, Member, Cameroon Bar, former Minister Mr. Maurice Kamto, Professor, University of Yaoundé II, Member, Paris Bar Mr. Peter Ntamark, Dean, Professor Law, Faculty of Law and Political Science, University of Yaoundé II, Barrister-at-Law, Member of the Inner Temple

Special Advisers

H.E. Mr. Joseph Owona, Minister of Youth and Sport Mr. Josep-Marie Bipoun Woum, Professor, University of Yaoundé II, former Minister

Deputy-agent, Counsel & Advocate

Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of Political Studies, Paris

Counsel & Advocates Mr. Michel Aurillac, avocat à la cour, Hon. Member of the Council of State, former Minister Mr. Jean-Pierre Cot, Professor, University of Paris I (PanthéonSorbonne), Vice-President of the European Parliament, Member, Paris and Brussels Bar, former Minister Mr. Keith Highet, Counsellor in International Law, ViceChairman, Intern-American Juridical Committee, OAS Mr. Malcolm N. Shaw, Barrister-at-Law, Sir Robert Jennings Professor of International Law, Faculty of Law, University of Leicester Mr. Bruno Simma, Professor, University of Munich Sir Ian Sinclair, K.C.M.G., Q.C., Barrister-at-Law Mr. Christian Tomuschat, Professor, University of Berlin



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Cameroon (cont.) Advisers

H.E. Mr. Pascal Biloa Tang, Ambassador of Cameroon to France H.E. Mrs. Isabelle Bassong, Ambassador of Cameroon to the Benelux Countries H.E. Mr. Martin Belinga Eboutou, Ambassador, Permanent Representative of Cameroon to the United Nations Lt. Gen. Pierre Semengue, Chief of Staff of the Armed Forces Mr. Robert Akamba, Principal Civil Administrator, chargé de mission, Secretariat of the Presidency of the republic Mr. Etinee Ateba, Minister-Counsellor, Chargé d’affaires a.i. at the Embassy of Cameroon, The Hague Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, Member of the National boundary Commission of Cameroon Mr. Ngolle Philip Ngwesse, Director at the ministry of Territorial Administration Mr. Thomas Fozein Kwanke, Counsellor in Foreign Affairs, Deputy Director at the Ministry of Foreign Relations Mr. Jean Gateaud, ingénieur général géographie Mr. Bienvenu Obelabout, Director, Central Administration, General Secretariat of the Presidency of the Republic Mr. Marc Sassen, Advocate and Legal Adviser, The Hague Mr. Joseph Tjop, Consultant at Mignard, Teitgan, Grisoni and Associates, Senior Teaching and Research Assistant, University of Paris X-Nanterre Mr. Songola Oudini, Director, Central Administration, General Secretariat of the Presidency of the Republic

Translator-Interpreter

Mrs. Florence Kollo, Principal Translator-Interpreter

Research Assistants

Mr. Pierre Bodeau, Teaching and Research Assistant, University of Paris X-Nanterre Mr. Olivier Corten, Senior Lecturer, Faculty of Law, Université libre de Bruxelles Mr. Daniel Khan, Assistant, University of Munich Mr. Jean-Marc Thouvenin, Senior Lecturer, University of Maine and Institute of Political Studies, Paris

Communications Specialists

Mr. Guy Roger Eba’a Mr. Daniel Nfan Bile

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Cameroon (cont.) Secretaries

Mrs. René Bakker Mrs. Florence Jovis Mrs. Mireille Jung

Nigeria Agent

H.E. the Hon. Alhaji Abdullahi Ibrahi, OFR, SAN, AttorneyGeneral of the Federation and Minister of Justice

Co-Agent

Chief Richard Akinijide, SAN, FCIArb, former Minister, Member, English and Gambian Bars

Counsel &Advocates

Mr. Ian Brownlie, C.B.E.Q.C., F.B.A., Chichele Professor of Public International Law, University of Oxford, Member of the International Law Commission, Member, English Bar Sir Arthur Watts, K.C.M.G, Q.C., Member, English Bar Mr. James Crawford, S.C., Whewell Professor of International Law, University of Cambridge, Member of the International Law Commission, Member, Australian Bar

Solicitors

Mr. Timothy H. Daniel, Partner, D.J. Freeman of the City of London Mr. Alain Perry, Partner, D.J. Freeman of the City of London Mr. David Lerer, Solicitor, D.J. Freeman of the City of London Mr. Christopher Hackford, Solicitor, D.J. Freeman of the City of London Ms. Louise Cox, trainee Solicitor, D.J. Freeman of the City of London

Advisers

Mr. A.H. Yadudu, Professor, Special Adviser to the Head of State on Legal Matters Mr. A. Oye Cukwurah, Professor, National Boundary Commission, Abuja Mr. I.A. Ayua, Professor, Director-General, NIALS Brig. Gen. L.S. Ajiborisha, Director of Operations, DHQ Mrs. Stella Omiyi, Director, International and Comparative Law Dept., Federal Ministry of Justice Mr. K. Mohammed, Director, Research and Analysis, the Presidency Mr. Jalal A. Arabi, Legal Adviser to the Secretary to the Government of the Federation



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Nigeria (cont.) Mr. M.M. Kida, Assistant Director, Ministry of Foreign Affairs Mr. Alhaji A.A. Adisa, Deputy Surveyor-General of the Federation, Abuja Mr. P.M. Mann, Chargé d’affaires, Embassy of Nigeria, The Hague Mrs. V. Okwecheme, Counsellor, Embassy of Nigeria, The Hague Mr. Amuzuei, Counsellor, Embassy of Nigeria, The Hague Mr. Clive Schofield, Cartographer, International Boundaries Research Unit, Durham University Mr. Arthur Corner, Cartographer, Durham University Ms. Michelle Burgoine, Information Technology Assistant Secretary

Mrs. Coralie Ayad, D.J.Freeman of the City of London

Section D – Counter-Claims Official citation: Land and Maritime Boundary between Cameroon and Nigeria, Order of 30 June 1999, I.C.J. Reports 1999, p. 983 Date of order: 30 June 1999 Authoritative text: French Composition of the Court: President Schwebel; Vice-President Weeramantry, Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Ajibola; Deputy-Registrar Arnaldez. Text of the operative paragraph(s) (p. 986) THE COURT, Finds that the counter-claims submitted by Nigeria in its Counter-Memorial are admissible as such and form part of the current proceedings; Decides that Cameroon shall submit a Reply and Nigeria shall submit a Rejoinder, relating to the claims of both Parties; Fixes the following time-limits for the filing of those pleadings: For the Reply of Cameroon, 4 April 2000; For the Rejoinder of Nigeria, 4 January 2001; and Reserves the subsequent procedure for further decision.

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Declarations/Opinion Declaration

Judge Oda

Separate Opinion

Judge Ranjeva

Declaration

Judge Herczegh

Dissenting Opinion

Judge Koroma

Separate Opinion

Judge Parra-Aranguren

Declaration

Judge Rezek

Separate Opinions

Judge Al-Khasawneh and Judge ad hoc Mbaye

Dissenting Opinion

Judge ad hoc Ajibola

Sources of Law ICJ Statute

Art. 48, p. 983

ICJ Rules of Court

Art. 31, p. 983 Art. 44, p. 983 Art. 45, p. 983 Art. 80, p. 983, 985 Art. 80(1), p. 985 Art. 80(2), p. 985

ICJ case-law

Current Order of 16 June 1994, p. 984 Order of 15 March 1996, p. 984 Judgment of 11 June 1998, p. 984 Order of 3 March 1999, p. 984

Section E – Permission for Intervention Official citation: Land and Maritime Boundary between Cameroon and Nigeria, Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, p. 1029 Date of Order: 21 October 1999 Authoritative text: English Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Mbaye, Ajibola; Registrar Valencia-Ospina



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Text of the operative paragraph(s) (p. 24, para. 49) THE COURT, Unanimously, 1. Decides that the Republic of Equatorial Guinea is permitted to intervene in the case, pursuant to Article 62 of the Statute, to the extent, in the manner and for the purposes set out in its Application for permission to intervene; 2. Fixes the following time-limits for the filing of the written statement and the written observations referred to in Article 85, paragraph 1, of the Rules of Court: 4 April 2001 for the written statement of the Republic of Equatorial Guinea; 4 July 2001 for the written observations of the Republic of Cameroon and of the Federal Republic of Nigeria; and 3. Reserves the subsequent procedure for further decision. Sources of Law ICJ Statute

Art. 36(2), p. 1032(5) Art. 48, p. 1029 Art. 62, p. 1029, 1030(1), 1032(4, 5)

ICJ Rules of Court

Art. 53(1), p. 1035(17) Art. 81, p. 1029, 1030(1) Art. 81(2.a), p. 1031(3) Art. 81(2.b), p. 1032(4) Art. 81(2.c), p. 1032(5) Art. 83, p. 1029 Art. 83(1), p. 1033(6) Art. 83(2), p. 1033(7) Art. 84, p. 1029 Art. 85, p. 1029, 1033(6), 1035(17)

ICJ case-law

Current Order of 16 June 1994, p. 1030 Judgment of 11 June 1998, p. 1030, 1030(1), 1033(9) Order of 30 June 1998, p. 1030 Order of 30 June 1999, p. 1030, 1035(17) Previous Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras), [I.C.J. Reports 1990, p. 130(90)], p. 1034(14) [I.C.J. Reports 1990, p. 135(100)], p. 1034–1035(15)

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Official citation: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303 Date of Judgment: 10 October 2002 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Mbaye, Ajibola; Registrar Couvreur Headnotes: Geographical context – Historical background – Territories’ changing status – Principal relevant instruments for determination of the land and mari-time boundary. Lake Chad area. Boundary delimitation -Relevant instruments (Milner – Simon Declaration, 1919; Thomson-Marchand Declaration, 1929–1930; Henderson-Fleuriau Exchange of Notes, 1931) – Boundary delimited and approved by Great Britain and France – Confirmation provided by demarcation work of Lake Chad Basin Commission, 1983 to 1991 – Co-ordinates of Cameroon-Nigeria-Chad tripoint and Ebeji mouth. Nigerian claims based on its presence in certain Lake Chad areas – Nigerian argument based on historical consolidation of title – Controversial theory which cannot replace modes of acquisition of title recognized by international law – Nigerian argument that peaceful possession, coupled with acts of administration, represents manifestation of sovereignty – Cameroon the holder of a pre-existing title over the lake areas in question – Test whether or not Cameroon manifestly acquiesced in transfer of its title to Nigeria – No acquiescence by Cameroon to relinquishment of its title over the area in favour of Nigeria – Sovereignty over settlements situated to the east of the boundary continues to lie with Cameroon. Land boundary from Lake Chad to the Bakassi Peninsula. Relevant instruments of delimitation ( Thomson- Marchand Declaration, Henderson-Fleuriau Exchange of Notes; British Order in Council, 1946; Anglo-German Agreements of 11 March and 12 April 1913 ) – Court’s task not to delimit the boundary de novo nor to demarcate it, but to “specify definitively” the course of the boundary as fixed by the relevant instruments – Dispute over interpretation or application of certain provisions of those instruments – Examination of each disputed sector.



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Bakassi Peninsula Anglo-German Agreement of 11 March 1913 – Nigeria’s arguments that Agreement defective : Preamble to General Act of Berlin Conference, 1885; no approval by German Parliament; Article 289 of Versailles Treaty, 1919 – Arguments rejected. Whether Great Britain entitled to transfer title over Bakassi under the AngloBerman Agreement of 11 March 1913 – 1884 Treaty of protection between Great Britain and Kings and Chiefs of Old Calabar – Legal status of such treaties of protection – Great Britain in 1913 to determine its boundary in Nigeria with Germany, including in the southern part. British mandate over territory of Cameroons – Bakassi covered by terms of mandate – Separate status of mandated territory by British Order in Council of 1923 – Territorial situation unchanged under trusteeship arrangement – Boundary between Bakassi and Nigeria remained an international boundary. Negotiations on maritime matters – Nigeria had accepted at the time that it was bound by Articles XVIII to XXII of the Anglo-German Agreement of 11 March 1913 and had recognized Cameroonian sovereignty over Bakassi Peninsula – Parties common position also reflected in geographic pattern of their oil concessions up to1991 – Anglo-German Agreement valid and applicable in its entirety. Other bases of Nigeria’s claim to Bakassi – Restatement of Court’s findings regarding the theory of historical consolidation of title – Historical consolidation cannot in any event give Nigeria title over Bakassi where its “ occupation” of the peninsula is adverse to Cameroon’s prior conventional title – Nigeria unable to act a titre de souverain before late 1970s, as it did not then regard itself as having title to Bakassi- No sufficient evidence after late 1970s that Cameroon acquiesced in relinquishment of its title in favour of Nigeria- Boundry delimited Bakassi – No sufficient evidence after late 1970s that Cameroon acquiesced in relinquishment of its title in favour of Nigeria – Boundary delimited by Articles XVIII to of Anglo-German of 11 March 1913 – Sovereignty over Bakassi lies with Cameroon. Maritime boundary between Cameroon and Nigeria. Nigeria’s argument that the Court must refuse to carry out in whole or part the delimitation requested by Cameroon because it areas claimed by third States and requirement of prior negotiation not satisfied- Nigeria’s eighth preliminary objection- Protection afforded by Article 59 of the Statute may not always be sufficient, in particular in respect of maritime, delimitations involving several States- Court unable to rule on Cameroon’s claims in so far as they may affect rights of Equatorial Guinea and Sao Tome and Pincipe-Mere Presence of those two States in Gulf of Guinea does not in itself preclude Court’s jurisdiction over maritime delimitation between the Parties –Court’s finding in its Judgment of 11 June 1998 that negotiations between Cameroon and Nigeria concerning the entire maritime delimitation had been conducted in the 1970s – Articles 74 and 83 of 1982 Convention on the Law of the Sea do not required that Judicial

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Proceedings be suspended while new negotiations are conducted if a party alters its claim in the course of proceedings- Those Articles do not preclude the Court from drawing the maritime boundary between Cameroon and Nigeria without prior simultaneous between those two States and Equatorial Guinea and Sao Tome and Principe. Maritime boundary up to point G – Boundary located to west of Bakassi Peninsula and not to east- Relevant instruments) Anglo-German Agreement of 11 March 1913, Yaounde II Declaration, 1971: Maroua Declaration, law because not ratified – Maroua Declaration entered into force immediately on signature – Nigeria’s argument that its constitutional rules on treaty ratification had not been compiled with – Heads of State regarded as empowered to represent their States for purpose of performing all acts relating to conclusion of a treaty- Letter of 23 August 1974 from Head of State of Nigeria to Head of State of Cameroon cannot be regarded as specific warning to Cameroon that Nigerian Government would not be bound by any commitment entered into by its Head of State- Yaounde II and Maroua Declarations must be considered as binding and imposing a legal obligation on Nigeria – Maritime delimitation must be considered as having been established on a conventional basis up to and including point G by Anglo– German Agreement of 11 March 1913 and Yaounde II and Maroua Declarations. Maritime boundary beyond point G – Paragraph 1 of Articles 74 and 83 of 1982 Law of the Sea Convention concerning delimitation of the continental shelf and exclusive economic zone- Parties’ agreement that delimitation between their maritime area to be effected by a single line –So-called equitable principles relevant circumstances method, involving first drawing and equidistance line then considering whether there are factors calling for adjustment of shifting of that line in order to achieve an “equitable result”-Definition of Parties’ relevant coastlines-Equidistance line cannot be extended beyond point where it might affect rights of Equatorial Guinea- Absence of circumstances which might require adjustment of equidistance line: configuration and length of relevant coastlines; presence of Bioko Island – Parties’ oil practice not a factor to be taken into account for purpose for maritime delimitation in this case- Equidistance line represents an equitable result for delimitation of the area in which the Court has jurisdiction to rule. Course of boundary of maritime areas. Cameroon’s submissions on Nigeria’s State responsibility and Nigeria’s counter –claims regarding Cameroon’s State responsibility. Nigeria under an obligations expeditiously and without condition to withdraw its administration and military and police forces from areas of Lake Chad falling under Cameroonian sovereignty and from the Bakassi PeninsulaCameroon under an obligation expeditiously and without condition to withdraw any administration or military or police forces which may be present in



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areas along the land boundary from Lake Chand to the Bakassi Peninsula which pursuant to the Judgment fall within the sovereignty of Nigeria – Nigeria under the same obligations as regards any administration or military or police forces which may be present in areas along the land boundary from Lake Chand to the Bakassi Peninsula which pursuant to the Judgment fall within the sovereignty of Cameroon-Co-operation between the Parties in implementing the Judgment Cameroon’s undertaking –Cameroon’s submissions seeking guarantees of nonrepetition cannot be upheld – Injury suffered by Cameroon by reason of the occupation of its territory sufficiently addressed by the very fact of the Judgment and of the evacuation of Cameroonian territory occupied by Nigeria-Cameroon has not shown that Nigeria acted in breach of the provisional measures indicated in the Order of 11 March 1996 – Boundary incidents-Neither Party has sufficiently proved the facts which it alleges or their imputability to the other Party has sufficiently proved the facts which it alleges or their imputability to the other Party- Rejection of Cameroon’s submissions on Nigeria’s State responsibility and of Niigeria’s counter-claims. Text of the operative paragraph(s) (p. 454, para. 325) THE COURT, 1. (A) By fourteen votes to two, Decides that the boundary between the Republic of Cameroon and the Federal Republic of Nigeria in the Lake Chad area is delimited by the Thomson-Marchand Declaration of 1929–1930, as incorporated in the HendersonFleuriau Exchange of Notes of 1931; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judge Koroma; Judge ad hoc Ajibola (B) By fourteen votes to two, Decides that the line of the boundary between the Republic of Cameroon and the Federal Republic of Nigeria iii the Lake Chad area is as follows: From a tripoint in Lake Chad lying at 14° 04' 59" longitude east and 13° 05' latitude north, in a straight line to the mouth of the River Ebeji, lying at 14° 12' 12" longitude east and 12° 32' 17" latitude north; and from there in a straight line to the point where the River Ebeji bifurcates, located at 14° 12' 03" longitude east and 12° 30' 14" latitude north;

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IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby; Judge ad doc Mbaye AGAINST: Judge Koroma; Judge ad hoc Ajibola II. (A) By fifteen votes to one, Decides that the land boundary between the Republic of Cameroon and the Federal Republic of Nigeria is delimited, from Lake Chad to the Bakassi Peninsula, by the following instruments: (i) from the point where the River Ebeji bifurcates as far as Tamnyar Peak, by paragraphs 2 to 60 of the Thomson-Marchand Declaration of 1929- 1930, as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931; (ii) from Tamnyar Peak to pillar 64 referred to in Article XII of the Anglo-German Agreement of 12 April 1913, by the British Order in Council of 2 August 1946; (iii) from pillar 64 to the Bakassi Peninsula, by the Anglo-German Agreements of 11 March and 12 April 1913; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleisch hauer, Higgins, Parra-Arangui en, Kooijmans, Rezek, AlKhasawneh, Buergenthal. Elaraby; Judges ad hoc Mbaye, Ajibola AGAINST: Judge Koroma (B) Unanimously, Decides that the aforesaid instruments are to be interpreted in the manner set out in paragraphs 91, 96, 102, 114, 119, 124, 129, 134, 139, 146, 152, 155, 160, 168, 179, 184 and 189 of the present Judgment; III. (A) By thirteen votes to three, Decides that the boundary between the Republic of Cameroon and the Federal Republic of Nigeria in Bakassi is delimited by Articles XVIII to XX of the Anglo-German Agreement of 11 March 1913; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parsa-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judge Koroma, Rezek; Judge ad hoc Ajibola (B) By thirteen votes to three, Decides that sovereignty over the Bakassi Peninsula lies with the Republic of Cameroon;



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IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judge Koroma, Rezek; Judge ad hoc Ajibola (C) By thirteen votes to three, Decides that the boundary between the Republic. of Cameroon and the Federal Republic of Nigeria in Bakassi follows the thalweg of the Akpakorum (Akwayafe) river, dividing the Mangrove Islands near Ikang in the way shown on map TSGS 2240, as far as the straight line joining Bakassi Point and King Point; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buer,genthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judge Koroma, Rezek; Judge ad hoc Ajibola IV. (A) By thirteen votes to three, Finds, having addressed Nigeria’s eighth preliminary objection, which it declared in its Judgment of 11 June 1998 not to have an exclusively preliminary character in the circumstances of the case, that it has jurisdiction over the claims submitted to it by the Republic of Cameroon regarding the delimitation of the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria, and that those claims are admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judges Oda, Koroma; Judge ad hoc Ajibola (B) By thirteen votes to three, Decides that, up to point G below, the boundary of the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria takes the following course: – starting from the point of intersection of the centre of the navigable channel of the Akwayafe River with the straight line joining Bakassi Point and King Point as referred to in point III (C) above, the boundary follows the ‘”compromise line” drawn jointly at Yaoundé on 4 April 1971 by the Heads of State of Cameroon and Nigeria on British Admiralty Chart 3433 (Yaoundé II Declaration) and passing through 12 numbered points, whose co-ordinates are as follows:

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point 1: point 2: point 3: point 4: point 5: point 6: point 7: point 8: point 9: point 10: point 11: point 12:

Longitude 8° 30' 44" E, 8° 30' 00" E, 8° 28' 50" E, 8° 27' 52" E, 8° 27' 09" E, 8° 26' 36" E, 8° 26' 03" E, 8° 25' 42" E, 8° 25' 35" E, 8° 25' 08" E, 8° 24' 47" E, 8° 24' 38" E,

Latitude 4° 40' 28" N 4° 40' 00" N 4° 39' 00" N 4° 38' 00" N 4° 37' 00" N 4° 36' 00" N 4° 35' 00" N 4° 34' 18" N 4° 34' 00" N 4° 33' 00" N 4° 32' 00" N 4° 31' 26" N;

– from point 12, the boundary follows the line adopted in the Declaration signed by the Heads of State of Cameroon and Nigeria at Maroua on 1 June 1975 (Maroua Declaration), as corrected by the exchange of letters between the said Heads of ' State of 12 June and 17 July 1975; that line passes through points A to G, whose co-ordinates are as follows : point A: point Al: point B: point C: point D : point E: point F: point G:

Longitude 8° 24' 24" E, 8° 24' 24" E, 8° 24' 10" E, 8° 23' 42" E, 8° 22' 41" E, 8° 22' 17" E, 8° 22' 19" E, 8° 22' 19" E,

Latitude 4° 31' 30" N 4° 31' 20" N 4° 26' 32" N 4° 23' 28" N 4° 20' 00" N 4° 19' 32" N 4° 18' 46" N 4° 17' 00" N;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal. Elaraby; Judge ad hoc Mbaye AGAINST: Judges Koroma, Rezek; Judge ad hoc Ajibola (C) Unanimously, Decides that. from point G. the boundary line between the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria follows a loxodrome having an azimuth of 270° as far as the equidistance line passing through the midpoint of the line joining West Point and East Point; the boundary meets this equidistance line at a point X, with co-ordinates 8° 21' 20" longitude east and 4° 17' 00" latitude north;



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(D) Unanimously, Decides that, from point X, the boundary between the maritime areas appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria follows a loxodrome having an azimuth of 187° 52' 27"; V. (A) By fourteen votes to two, Decides that the Federal Republic of Nigeria is under an obligation expeditiously and without condition to withdraw its administration and its military and police forces from the territories which fall within the sovereignty of the Republic of Cameroon pursuant to points 1 and III of this operative paragraph; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye AGAINST: Judge Koroma; Judge ad hoc Ajibola (B) Unanimously, Decides that the Republic of Cameroon is under an obligation expeditiously and without condition to withdraw any administration or military or police forces which may be present in the territories which fall within the sovereignty of the Federal Republic of Nigeria pursuant to point II of this operative paragraph. The Federal Republic of ' Nigeria has the same obligation in respect of the territories which fall within the sovereignty of the Republic of Cameroon pursuant to point II of this operative paragraph; (C) By fifteen votes to one, Takes note of the commitment undertaken by the Republic of Cameroon at the hearings that, “faithful to its traditional policy of hospitality and tolerance”, it “will continue to afford protection to Nigerians living in the [Bakassi] Peninsula and in the Lake Chad area”; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc: Mbaye, Ajibola AGAINST: Judge Parra-Aranguren (D) Unanimously, Rejects all other submissions of the Republic of Cameroon regarding the State responsibility of the Federal Republic of Nigeria; (E) Unanimously, Rejects the counter-claims of the Federal Republic of Nigeria.

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Sources of Law UN Charter

Art. 2(4), p. 450(310)

ICJ Statute

Art. 31(3), p. 313(10) Art. 36(2), p. 312(1), 422(239) Art. 40(2), p. 312(2) Art. 40(3), p. 313(7) Art. 41, p. 313(11) Art. 59, p. 419(233), 421(238), 439(284) Art. 62, p. 314(18), 418(230)

ICJ Rules of Court

Art. 53(1), p. 313(15) Art. 53(2), p. 315(23) Art. 60(2), p. 325(27) Art. 72, p. 316(24) Art. 79(3), p. 313(9) Art. 79(7), p. 420(237) Art. 81, p. 1029, 1030(1) Art. 81(2.a), p. 1031(3) Art. 81(2.b), p. 1032(4) Art. 81(2.c), p. 1032(5) Art. 83, p. 314(17) Art. 83(1), p. 1033(6) Art. 83(2), p. 1033(7) Art. 84, p. 1029 Art. 85, p. 314(18) Art. 85(1), p. 329(28) Art. 85(3), p. 329(29)

ICJ Case-law

Current Order of 16 June 1994, p. 313(6) Order of 10 January 1996, p. 313(9) Order of 15 March 1996, p. 313(11), 453(322) Judgment of 11 June 1998, p. 313(12, 14), 332(36), 334(39), 357(78), 373(119), 417(227), 420(237), 422(239, 240. 241), 423(242, 243), 424(244) Order of 30 June 1998, p. 313(13) Order of 3 March 1999, p. 313(16) Judgment of 25 March 1999, p. 313(14) Order of 30 June 1999, p. 314(17, 19) Order of 21 October 1999, p. 314(18) Previous Kasikili/Sedudu Island (Botswana/Namibia), [I.C.J. Reports 1999 (II), p. 1064–72 (30–40)], p. 346(58) Fisheries Jurisdiction (UK v. Norway), [I.C.J. Reports 1951, p. 130], p. 352(65)



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Sources of Law (cont.) Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 587 (63)], p. 353(68), 355(70), 413(219), 415(222), 417(228), 419(233), 421(238) Territorial Dispute (Libya /Chad), [I.C.J. Reports 1994, p. 38(75– 76)], p. 36–37(53), p. 353(68), 359(84), 411(233), 421(238), 451(313) Land, Island and Maritime Frontier Dispute (El Salvador / Honduras: Nicaragua intervening), Judgment, [I.C.J. Reports 1992, p. 408–409(80)], p. 354(68) Western Sahara, Advisory Opinion, [I.C.J. Reports 1975, p. 39(80)], p. 405(205) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), p. 406(207), 436(279), 440(286), 441(289), 442(290), 443(292) The Minquiers and Ecrehos case, Judgement of November 17th, 1953: [I.C.J. Reports 1953, p. 53], p. 413(218), 415(222) Continental Shelf (Libya /Malta), [I.C.J. Reports 1984, p. 24–28(20–23)], p. 417(228), 434(274), 441(287), 443(293), 447(304) Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1982, p. 91(130)], p. 418(232), 421(238), 433(273), 436(279), 437(281), 447(304) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), [I.C.J. Reports 1998, p. 27–28(49–50)], p. 420(237), 432(270) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. USA), 1998, [I.C.J. Reports 1998, p. 132–134(48–49)], p. 420(237) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p. 30(40)], p. 420(237), 453(321) North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), [I.C.J. Reports 1969, p. 4], p. 432(270), 433(273), 435(279), 438(283), 445(295, 297) Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment [I.C.J. Reports 1993, p. 62(54)], p. 432(270), 433(273), 441(289), 446(301)

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Sources of Law (cont.) Gulf of Maine Case, [I.C.J. Reports 1984, p. 290], p. 432(271), 441(287), 446(301), 448(304) Temple of Preah Vihear, Merits, Judgment, [I.C.J. Reports 1962, p. 37), p. 451(313) LaGrand (German v. United States of America), Judgment, [I.C.J. Reports 2001, pp. 508 (117)], p. 452(318), 453(321) Treaties

League of Nations Covenant, p.413(219) 1893 Agreement Great Britain and Germany respecting the Boundaries in Africa of 15 November 1893, p. 331(33) 1884 Treaty between Great Britain and the Kings and Chiefs of Old Calabar of 10 September 1884, p. 333(37), 402(201), 403(202), 404(203, 204, 205), 405(207), 408(211) 1885 General Act of the Conference of Berlin of 26 February 1885, p. 400(194) 1894 Franco-German Convention of 15 March 1894, p. 331(33) 1906 Anglo-German Agreement of 19 March 1906, p. 331(33), 336(43), 338(48), 342(53), 375(131), 377(133) 1906 Franco-Britain Convention of 29 May 1906, p. 331(33), 337(44), 338(48), 342(53) 1908 Franco-German Convention of 9 April 1908, p. 331(33), 336(43), 337(44), 338(48), 342(53) 1910 Franco-British Protocol of 19 February 1910, p. 331(33), 342(53) 1913 Anglo-German Agreement of 11 March 1913, p. 331(33), 333(37, 38), 355(74), 357(75, 76), 359(82), 399(193), 400(194, 195, 196), 401(197, 198, 199, 200), 402(201), 403(202), 407(210), 409(212), 410(213, 214), 411(215), 412(216, 217), 414(220), 416(225), 425(249), 425(250), 428(261), 431(268) 1913 Anglo-German Agreement of Obokum of 12 April 1913, p. 318(26), 326(27), 331(33), 333(37, 38), 357(75), 359(82) 1919 Treaty of Versailles of 28 June 1919, p. 331(34), 400(194), 401(198, 199) 1946 Trusteeship Agreement for the Territory of Cameroon under French Administration of 13 December 1946, p. 336(42), 339(48, 49), 359(80) 1964 Convention establishing the Lake Chad Basin Commission of 22 May 1964, p. 332(36)



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Sources of Law (cont.) 1969 Vienna Convention on the Law of Treaties of 23 May 1969, p. 336(44), 428(258, 260), 429(264), 430(265) 1971 Yaoundé II Agreement between Cameroon and Nigeria of 4 April 1971, p. 408(210), 425(249) 1974 the Kano Agreement of 1 September 1974, p. 402(210)1982 Law of the Seas Convention, p. 323(26), 422(240), 423(242), 424(244, 245), 435(278), 440(285) 1975 Maroua Agreement of 1 June 1975, p. 408(210), 426(253) 2000 Treaty between Cameroon and Equatorial Guinea of 23 September 2000, p. 424(243), 440(284) UN Resolutions

General Assembly Resolutions 1350 (XIII) of 13 March 1959, p. 332(35) 1608(XV) of 21 April 1961, p. 332(25), 408(210), 410(213)

Inter(national) legal references

1919 Franco-Britain – Milner-Simon Declaration of 10 July 1919, p. 325(27), 331(34), 334(40), 335(41, 42), 338(45, 46, 48), 339(49, 50), 341(51), 344(55), 345(57), 409(212) 1920 Mair-Pition Joint Proposal of 12 November 1920, p. 382(141) 1929 Thomson/Merchant Declaration of 29 December 1929, p. 318(26), 325(27), 334(40), 335(41), 336(42), 338(45, 46), 340(50), 341(51), 344(55), 346(59), 355(73), 359(80), 360(86, 87), 362(90), 363(91, 92, 93), 365(95, 96, 97), 366(98, 99, 100, 101), 367(102), 369(103, 104, 105), 370(106, 108), 371(110, 114, 115, 116), 372(118), 373(119, 120, 121, 122), 374(124, 125, 128), 375(129, 130, 131), 377(132, 133, 134), 378(135, 136, 138, 139), 381(140, 141), 382(142, 143), 383(144, 145, 146), 384(147, 148, 149, 150), 385(151, 152, 153), 387(154, 155, 156), 387(157, 158, 159, 160, 161), 389(162, 163, 164), 390(166, 167), 391(171, 173), 393(174) 1930 Logan-Le-Brun process-verbal of 16 October 1930, p. 383(141, 142), 383(144, 145), 384(148), 385(151) 1931 Exchange of Letters of 9 January 1931, p. 318(26), 325(27), 334(40), 344(56) 1931 Henderson-Fleuriau Exchange of Notes of 9 January 1931, p. 332(34), 335(41), 336(42), 337(44), 338(46), 340(50), 341(51, 52), 342(53), 344(55), 345(57, 58), 346(59, 60), 355(70, 73), 359(80) 1946 British Nigeria (Protectorate and Cameroons) Order in Council of 2 August 1946, p. 318(26), 326(27), 332(34)1946 British Decision (1946 Order in Council), p. 332(35), 355(74), 359(82), 360(86), 38((163), 391(169, 170, 391(171, 172), 393(174, 175, 176), 394(177, 178), 395(179, 180, 181), 397(183, 184, 185), 398(188, 189)

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Sources of Law (cont.) 1970 Yaoundé I Declaration of 14 August 1970, p. 333(38), 411(214) 1971 Yaoundé II Declaration of 4 April 1971, p. 333(38), 411(214), 425(249), 425(251), 426(253), 427(257, 258), 429(262), 431(268) 1975 Maroua Declaration of 1 June 1975, p. 334(38), 411(214), 416(223), 425(248, 249), 425(251), 428(259), 429(262, 263, 264), 431(267, 268), 448(307) 1988 Contract IGN-FI of 26 May 1998, p. 343(54) 1923 British Cameroons Order in Council of 1923, p. 407(210), 409(212) 1949 British Protectorates, Protected States and Protected Persons Order in Council, 1949, p. 406(208)1966 Palena Arbitration of 9 December 1966 (38 International Law Reports (ILR), p. 93–95), p. 346(580) 1951 “Northern Region, Western Region and Eastern Region (Definition of Boundaries) Proclamation, 1954”, issued pursuant to the Nigeria (Constitution) Order in Council, 1951, p. 410(213)1988 Minutes concerning the position of the northern limit of the border between Chad and Niger of 2 March 1988, p. 343(54) 1962 Nigerian Note No. 570 of 27 March 1962, p. 408(210) 1962 Nigerian Note Verbale No. 570 of 27 March 1962 addressed to Cameroon, p. 410(214) 1966 ILC Commentary, Yearbook of the International Law Commission, 1966, Vol. II, p. 193), p. 430(265) 1975 Exchange of Letters between Cameroon and Nigeria of 12 June and 17 July 1975, p. 411(214) 1982 Kerkennah Islands (1. C J. Reports 1982, pp. 88–89, paras. 128–129), p. 436(279) 1986 Arbitral Tribunal in the case concerning the Delimitation of the Maritime Boundary between Guinea and GuineauBissau, ILM, Vol. 25 (1986), p. 295, para. 104, p. 433(272, 273), 445(297), 447(304) 1992 Delimitation of Maritime Areas between Canada and the French Republic (St. Pierre et Miquelon) (ILM, \ 01. 31 (1992), p. 1149), p. 434(273, 274)437(281), 447(304) 1994 Note from the Cameroonian Ministry of Foreign Affairs of 21 April 1994, p. 351(63), 354(69)



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Sources of Law (cont.) Islands of Palma case, United Nations, Reports of International Arbitral Awards (RIAA), Vol. II, pp. 858–859.), p. 405(205) Arbitral Tribunal in the Eritrea/Yemen Award (Second Phase), p. 417(228) Delimitation of the Continental Shelf (United Kingdom/France) (RIAA, Vol. XVIII, p. 3), p. 432(270), 434(274), 436(279), 446(299) Report of the United Nations Plebiscite Commissioner for the Cameroons, p. 410(213)

Representation of Parties Cameroon Agent

H.E. Mr. Laurent Esso, Minister of Justice, Keeper of the Seals

Co-Agents, Mr. Maurice Kamto, Professor, University of Yaoundé II, Counsel & Advocates Member, Paris Bar Mr. Peter Ntamark, Dean, Professor Law, Faculty of Law and Political Science, University of Yaoundé II, Barrister-at-Law, Member of the Inner Temple Deputy-agent, Counsel & Advocate

Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of Political Studies, Paris

Special Adviser & Advocate

Mr. Joseph-Marie Bipoun Woum, Professor, Faculty of Law and Political Science, University of Yaoundé II, former Dean, former Minister,

Counsel & Advocates Mr. Michel Aurillac, avocat à la cour, Hon. Member of the Council of State, former Minister Mr. Jean-Pierre Cot, Professor, University of Paris I (PanthéonSorbonne), Vice-President of the European Parliament, Member, Paris and Brussels Bar, former Minister Mr. Maurice Mentielson, Q.C., Emeritus Professor of International Law, University of London, Barrister-at-Law, Mr. Malcolm N. Shaw, Barrister-at-Law, Sir Robert Jennings Professor of International Law, Faculty of Law, University of Leicester Mr. Bruno Simma, Professor, University of Munich, member of the International Law Commission Sir Ian Sinclair, K.C.M.G., Q. C., Barrister-at-Law

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Cameroon (cont.) Mr. Christian Tomuschat, Professor, University of Berlin former member and Chairman, International Law Commission, Mr. Olivier Corten, Professor of International Law. Faculty of Law, Université libre de Bruxelles, Mr. Daniel Khan, Lecturer, International Law Institute, University of Munich, Mr. Jean-Marc Thouvenin, Professor, University of Paris X-Nanterre, avocat at the Paris Bar, société d’avocats Lysias. Counsel

Mr. Eric Diamantis. avocat at the Paris Bar, Moqiiet, Bordes &Associés, Mr. Jean-Pierre Mignard, avocat at the Paris Bar, société d’avocats Lysias, Mr. Joseph Tjop, Consultant to société d’avocats Lysias, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre,

Advisers

General Pierre Semengue, Controller-General of the Armed Forces, former Chief of Staff of the Armed Forces, Major-General James Tataw, Logistics Adviser, Former Chief of Staff of the Army, H.E. Ms. Isabelle Bassong, Ambassador of Cameroon to the Benelux Countries and to the European Union, H.E. Mr. Pascal Billoa Tang, Ambassador of Cameroon to France, H.E. Mr. Martin Belinga Eboutou, Ambassador, Permanent Representative of Cameroon to the United Nations in New York, Mr. Etienne Ateba, Minister-Counsellor, Chargé d’affaires ai. at the Embassy of Cameroon, The Hague. Mr. Robert Akamba, Principal Civil Administrator, Chargé de mission, General Secretariat of the Presidency of the Republic, Mr. Anicet Abanda Atangana, Attaché to the General Secretariat of the Presidency of the Republic, Lecturer, University of Yaoundé II, Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, member, National Boundary Commission, Mr. Ousmane Mey, former Provincial Governor,



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Cameroon (cont.) Chief Samuel Mokka Liffafa Endeley, Honorary Magistrate, Barrister-at-Law, member of the Middle Temple, former President of the Administrative Chamber of the Supreme Court, Maître Marc Sasseri, Advocate and Legal Adviser, Petten, Tideman &Sassen, The Hague, Mr. Francis Fai Yeingo, former Provincial Governor, Director, Organisation du Territoire, Ministry of Territorial Administration, Mr. Jean Mbenoun, Director, Central Administration. General Secretariat of the Presidency of the Republic, Mr. Edouard Etoundi, Director, Central Administration, General Secretariat of the Presidency of the Republic, Mr. Robert Tanda, diplomat, Ministry of Foreign Affairs, Experts

Mr. Samuel Betha Sona, Geological Engineer, Consulting Expert to the United Nations for the Law of the Sea, Mr. Thomson Fitt Takang, Department Head. Central Administration, General Secretariat of the Presidency of the Republic, Mr. Jean-Jacques Koum, Director of Exploration, National Hydrocarbons Company (SNH), Commander Jean-Pierre Meloupou, Head of Africa Division at the Ministry of Defence, Mr. Paul Moby Etia, Geographer, Director, Institut national de cartographie, Mr. André Loudet, Cartographic Engineer, Mr. André Roubertou, ingénieur général de l’armement C.R. (hydrographer).

Translator-Interpreter

Mrs. Florence Kollo, Principal Translator-Interpreter

Research Assistants

Ms. Céline Negre, Researcher, Centre d’études de droit international de Nanterre (CEDIN), University of Paris X-Nanterre, Ms. Sandrine Barbier, Researcher, Centre d’études de droit international de Nanterre (CEDIN), University of Paris X-Nanterre, Mr. Richard Penda Keba, Certified Professor of History, cabinet of the Minister of State for Justice, former proviseur de lycées

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Cameroon (cont.) Media Officers

Mr. Boukar Oumara, Mr. Guy Roger Eba’a, Mr. Aristide Esso, Mr. Nkende Forbibake, Mr. Nfan Bile, Mr. Eithel Mbocka, Mr. Olinga Nyozo’o,

Secretaries

Ms. Renée Bakker, Ms. Laurence Polirsztok, Ms. Mireille Jung, Mr. Nigel McCollum, Ms. Tete Béatrice Epeti-Kame,

Nigeria Agent

H.E. the Honourable Musa E. Abdullahi, Minister of State for Justice of the Federal Government of Nigeria,

Co-Agents

Chief Richard Akinjide SAN, Former Attorney-General of the Federation, member of the English Bar, former member of the International Law Commission. Alhaji Abdullahi Ibrahim CON, SAN, Commissioner, International Boundaries, National Boundary Commission of Nigeria, Former Attorney-General of the Federation,

Counsel & Advocates Mrs. Nella Andem-Ewa, Attorney-General and Commissioner for Justice, Cross River State, Mr. Ian Brownlie, C.B.E., Q.C., member of the International Law Commission, member of the English Bar, member of the Institute of International Law, Sir Arthur Watts, IC.C.M.G., Q.C., member of the English Bar, member of the Institute of International Law, Mr. James Crawford, S.C., Whewell Professor of International Law, University of Cambridge, member of the English and Australian Bars, member of the Institute of International Law, Mr. Georges Abi-Saab, Honorary Professor, Graduate Institute of International Studies, Geneva, member of the Institute of International Law, Mr. Alastair Macdonald, Land Surveyor, Former Director, Ordnance Survey, Great Britain,



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Nigeria (cont.) Counsel

Mr. Timothy H. Daniel, Partner, D.J. Freeman, Solicitors, City of London, Mr. Alan Perry, Partner, D.J. Freeman, Solicitors, City of London, Mr. David Lerer, Solicitor, D.J. Freeman, Solicitors, City of London, Mr. Christopher Hackford, Solicitor, D.J. Freeman, Solicitors, City of London, Ms. Charlotte Breide, Solicitor, D.J. Freeman, Solicitors, City of London, Mr. Ned Beale, Trainee, D.J. Freeman, Solicitors, City of London, Mr. Geoffrey Marston, Fellow of Sidney Sussex College, University of Cambridge, member of the Bar of England and Wales, Mr. Maxwell Gidatio, Senior Special Assistant to the President (Legal and Constitutional Matters), former Attorney-General and Commissioner for Justice, Adamawa State, Mr. A.O. Cukwurah, Co-Counsel, Former UN (OPAS) Boundary Adviser to the Kingdom of Lesotho, Former Commissioner, Inter-State Boundaries, National Boundary Commission, Mr. I. Ayua, member, Nigerian Legal Team, Mr. K.A. Adabale, Director (International and Comparative Law), Ministry of Justice Mr. Jalal Arabi, member, Nigerian Legal Team, Mr. Gbola Akinola, member, Nigerian Legal Team, Mr. K.M. Tumsah, Special Assistant to Director-General, National Boundary Commission, and Secretary to the Legal Team,

Advisers

H.E. the Honourable Dubem Onyia, Minister of State for Foreign Affairs, Alhaji Dahiru Bobbo, Director-General, National Boundary Commission, Mr. F.A. Kassim, Surveyor-General of the Federation, Alhaji S.M. Diggi, Director (International Boundaries), National Boundary commission, Colonel A.B. Maitama, Ministry of Defence, Mr. Aliyu Nasir, Special Assistant to the Minister of State for Justice,

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Nigeria (cont.) Scientific and Technical Advisers

Mr. Chris Carleton, C.B.E., United Kingdom Hydrographic Office, Mr. Dick Gent, United Kingdom Hydrographic Office, Mr. Clive Schofield, International Boundaries Rescarch Unit, University of Durham, Mr. Scott B. Edmonds. Director of Cartographic Operations, International Mapping Associates, Mr. Robert C. Rizzutti, Senior Mapping Specialist, International Mapping Associates, Mr. Bruce Daniel, International Mapping Associates, Ms. Victoria J. Taylor, International Mapping Associates, Ms. Stephanie Kim Clark, International Mapping Associates, Mr. Robin Cleverly, Exploration Manager, NPA Group, Ms. Claire Ainsworth, NPA Group,

Administrators

Mr. Mohammed Jibrilla, Computer Expert, National Boundary Commission, Ms. Coralie Ayad, Secretary, D.J. Freeman, Solicitors, City of London. Ms. Claire Goodacre, Secretary, D.J. Freeman, Solicitors, City of London, Ms. Sarah Bickell, Secretary, D.J. Freeman, Solicitors, City of London, Ms. Michelle Burgoine, ITSpecialist, D.J. Freeman, Solicitors, City of London,

Media Officers

Mr. Geoffrey Anika, Mr. Mau Onowu, Mr. Austeen Elewodalu, Mr. Usman Magawata,

Republic of Equatorial Guinea Agent & Counsel

H.E. Mr. Ricardo ‘Mangue Obama N’Fube, Minister of State for Labour and Social Security,

Advisers

H.E. Mr. Rubén Maye Nsue Mangue, Minister of Justice and Religion, Vice-President of the National Boundary Commission,



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Republic of Equatorial Guinea (cont.) H.E. Mr. Cristobal Mañana Ela Nchama, Minister of Mines and Energy, Vice-President of the National Boundary Commission, H.E. Mr. Antonio Nzambi Nlonga, Attorney-General of the State, Mr. Domingo Mba Esono, National Director of the Equatorial Guinea National Petroleum Company, member of the National Boundary Commission, H.E. Juan Oló Mbal Nzang, former Minister of Mines and Energy, Counsel & Advocates Mr. Pierre-Marie Dupuy, Professor of Public International Law at the University of Paris II (Panthéon-Assas) and at the European University Institute, Florence, Mr. David A. Colston, LeBoeuf, Lamb, Greene &MacRae, L.L.P., Washington, D.C., member of the California State Bar and District of Columbia Bar. Senior Counsel

Sir Derek Bowett, C.B.E., Q.C.,

Counsel

Mr. Derek C. Smith, LeBoeuf, Lamb, Greene &MacRae, L.L.P., Washington, D.C., member of the District of Columbia Bar and Virginia State Bar,

Legal Experts

Ms. Jannette E. Hasan, LeBoeuf, Lamb, Greene &MacRae, L.L.P., Washington, D.C., member of the District of Columbia Bar and Florida State Bar, Mr. Hervé Blatry, LeBoeuf, Lamb, Greene &MacRae, L.L.P., Paris, avocet à la Cour, member of the Paris Bar,

Technical Experts

Mr. Coalter G. Lathrop, Sovereign Geographic Inc., Chapel Hill, North Carolina, Mr. Alexander M. Tait, Equator Graphics Inc., Silver Spring, Maryland,

Fisheries Jurisdiction Case (Spain v. Canada)

General List No.: 96 Mean(s) and date of institution of the case: Application (28 March 1995) Statement of claim/question: Spain requests the Court to adjudge and declare: A. That the Court declare that the legislation of Canada, in so far as it claims to exercise a jurisdiction over ships flying a foreign flag on the high seas, outside the exclusive economic zone of Canada, is not opposable to the Kingdom of Spain; B. That the Court adjudge and declare that Canada is bound to refrain from any repetition of the acts complained of, and to offer to the Kingdom of Spain the reparation that is due, in the form of an indemnity the amount of which must cover all the damages and injuries occasioned; and C. That, consequently, the Court declare also that the boarding on the high seas, on 9 March 1995, of the ship Estai flying the flag of Spain, and the measures of coercion and the exercise of jurisdiction over that ship and over its captain, constitute a concrete violation of the aforementioned principles and norms of international law. Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

28 March 1995 to 4 December 1998

Preliminary objection

21 April 1995 to 4 December 1998

Public sittings Between 9 and 17 June 1998

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Orders Date of Order and Authority

Content

2 May 1995 President Bedjaoui

Fixing of time-limits: 29 September 1995 – Memorial of Spain 29 February 1996 – Counter-Memorial of Canada

8 May 1996 Court – President Bedjaoui

The Court by fifteen votes to two decides not to authorise the filing of a Reply by the Applicant and a Rejoinder by the Respondent on the question of the jurisdiction of the Court to entertain the dispute IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Ferrari Bravo, Higgins, Parra-Aranguren, Judge ad hoc Lalonde Against: Judge Vereshchtein, Judge ad hoc Torres Bernárdez] Judge ad hoc Torres Bernárdez appends a dissenting opinion

Section B – Judgment Official citation: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432 Date of Judgment: 4 December 1998 Authoritative text: English Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Lalonde, Torres Bernardéz; Registrar Valencia-Ospina. Headnotes: Subject of the dispute – Role of the Application with regard to the determination of the questions on which the Court must adjudicate – Definition of the dispute by the Court – Specific acts taken by Canada on the basis of certain enactments and regulations, and legal consequences of those acts. Jurisdiction of the Court – Question to be determined by the Court itself – No burden of proof.

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Declarations of acceptance of the Court’s compulsory jurisdiction – Conditions and reservations as elements serving to determine the scope of acceptance of the Court’s jurisdiction and not as derogations from a wider acceptance already given – Interpretation of the various elements of a declaration as forming a single whole – Successive declarations – Régime applicable to the interpretation of declarations as unilateral acts, and that established for the interpretation of treaties – Interpretation of the relevant terms of a declaration, including reservations, in a natural and reasonable manner, due regard being had to the intention of the declarant State – Ascertaining the intention – Contra proferentem rule – Effectiveness principle – Legality of the acts covered by a reservation not relevant for purposes of interpretation of that reservation – Article 33 of the Charter. Subparagraph 2 (d) of the Canadian declaration of 10 May 1994 – Intention at the time of the subparagraph’s adoption – Links between Canada’s new declaration and its new coastal fisheries protection legislation – Parliamentary debates. Interpretation of the text of the reservation: “Disputes arising out of ” – Broad and comprehensive character of the phrase – Disputes having as their “subject-matter” the measures referred to in the reservation, “concerning” such measures or having their “origin” therein. “Conservation and management measures” – “Measure” as an act, step or proceeding – “Measure” of a “legislative” nature – Relationship between a statute and implementing regulations within the legislative system of Canada and other countries – Interpretation of an international instrument in the light of international law – Distinction between the definition of a concept and the legality of an act falling within the scope of that concept – “Conservation and management” measures as measures having as their purpose the conservation and management of living resources – Characterization by reference to factual and scientific criteria – Conservation and management measures in the sense generally accepted in international law and practice. “Taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978" – Area constituting part of the high seas – Meaning to be attributed to the word “vessels” – “Natural and reasonable” interpretation of the text – Declarant’s intention – Parliamentary debates. “And the enforcement of such measures” – Use of force – Penal sanctions and enforcement of conservation and management measures – Canadian legislation and regulations – Restrictions bringing the authorized use of force within the recognized category of measures of enforcement for purposes of conservation – Boarding, inspection and seizure of a fishing vessel, and minimal use of force for

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these purposes, as elements coming within the concept of enforcement of conservation and management measures according to a “natural and reasonable” interpretation of that concept. Interpretation of the reservation not prejudging the legality of the acts covered thereby – No reason to apply Article 79, paragraph 7, of the Rules in order to declare that Canada’s objection is not of an exclusively preliminary character. “Automatic reservation” – Court not deprived of its competence to interpret Canada’s reservation – Court’s findings on its jurisdiction resulting from that interpretation alone. Mootness – Determination not necessary in this case. Text of the operative paragraph(s) (p. 468, para. 89) THE COURT, By twelve votes to five, Finds that it has no jurisdiction to adjudicate upon the dispute brought before it by the Application filed by the Kingdom of Spain on 28 March 1995. IN FAVOUR: President Schwebel; Judges Oda, Guillaume, Herczegh, Shi, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Lalonde AGAINST: Vice-President Weeramantry; Judges Bedjaoui, Ranjeva, Veresh­ chetin; Judge ad hoc Torres Bernárdez Declarations/Opinions Separate Opinion

President Schwebel and Judges Oda, Koroma and Kooijmans

Dissenting Opinion

Vice-President Weeramantry, Judges Bedjaoui, Ranjeva and Vereshchetin, and Judge ad hoc Torres Bernardéz

Sources of Law UN Charter

Art. 33, p. 456(56) UN Charter, p. 451(40), 452(43), 455(53)

ICJ Statute

Art. 31(3), p. 436(5) Art. 36(2), p. 435(1), 438(14), 450(36), 451(39), 452(42, 43), 452–453(44), 453(46), 454(48), 454–455(51), 455(52) Art. 36(6), p. 467(86) Art. 40(1), p. 447–448(29) Art. 40(2), p. 435(2) Art. 40(3), p. 435(2)

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Sources of Law (cont.) ICJ Rules of Court

Art. 31, p. 435(4), 436(6) Art. 38(2), p. 447–448(29) Art. 53(2), p. 436(8) Art. 56(4), p. 436(7) Art. 79(7), p. 467(85)

PCIJ case-law

Prince Von Pless Administration, Order of 4 February 1933, [P.C.I.J., Series A/B, No. 52, p. 14], p. 447–448(29) Société Commerciale de Belgique, Judgment, 1939, [P.C.I.J., Series A/B, No. 78, p. 173], p. 447–448(29) Factory at Chorzów, Jurisdiction, Judgment No. 9, 1927, [P.C.I.J., Series A, No. 9, p. 32], p. 450–451(38) Phosphates in Morocco, Judgment 1938, P.C.I.J., Series A/B, No. 74, p. 23], p. 452–453(44)

ICJ case-law

Current Order of 8 May 1996, p. 436(6) Previous Fisheries (UK v. Norway), [I.C.J. Reports 1951, p. 126], p. 449(32) Minquiers and Echrehos, [I.C.J. Report 1953, p. 52], p. 449(32) Nottebohm (second phase), [I.C.J. Reports 1955, p. 16], p. 449(32) Anglo-Iran Oil Co., [I.C.J. Reports 1952, p. 105], p. 454(47) [I.C.J. Reports 1952, p. 104], p. 454(47) [I.C.J. Reports 1952, p. 104], p. 454(48) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 29(69)], p. 454(49) [I.C.J. Reports 1978, p. 34(81), 36(86)], p. 458(62) Certain Norwegian Loans, [I.C.J. Reports 1957, p. 27], p. 454(47) Northern Cameroons, [I.C.J. Reports 1963, p. 38], p. 467–468(88) Certain Phosphates Lands in Nauru, [I.C.J. Reports 1992, p. 266–267], p. 447–448(29) Interhandel, [I.C.J. Reports, 1959, p. 21], p. 447–448(29) Right of Passage over Indian Territory, [I.C.J. Reports 1960, p. 27], p. 447–448(29), 455–456(54) [I.C.J. Reports 1960, p. 33–34], p. 448–449(30) [I.C.J. Reports 1957, p. 142], p. 455(53)



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Sources of Law (cont.) Nuclear Tests case (Australia v. France), [I.C.J. Reports 1974, p. 260(24)], p. 447–448(29) [I.C.J. Reports 1974, p. 262–263], p. 449(31) [I.C.J. Reports 1974, p. 262(29)], p. 449(32) [I.C.J. Reports 1974, p. 271(58)], p. 467–468(88) Nuclear Tests case (New Zealand v. France), [I.C.J. Reports 1974, p. 466(30)], p. 448(30) Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, I.C.J. Reports 1995, p. 304(55)], p. 448(30) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 437(101)], p. 450(37) [I.C.J. Reports 1984, p. 418(59)], p. 455–456(54) Border and Transborder Armed Actions (Nicaragua v. Honduras), [I.C.J. Reports 1988, p. 76(16)], p. 450(37) Territorial Dispute (Libya v. Chad), [I.C.J. Reports 1994, pp. 14–15(19) and 28(57)], p. 447–448(29) Maritime Delimitation and Territorial Questions between Qatar and Bahrain, [I.C.J. Reports 1995, p. 24–25], p. 449(31) Land and Maritime Boundary between Cameroon and Nigeria, I.C.J. Reports 1998, p. 291(25)], p. 453(46) Treaties

1923 Convention between the USA and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean, p. 461(70) 1930 Convention between the USA and Canada for the Preservation for the Halibut Fisheries of the Northern Pacific Ocean and Bering Sea, p. 461(70) 1949 International Convention for the Northwest Atlantic Fisheries, p. 461(70) 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, p. 461(70) 1959 North-East Atlantic Fisheries Convention, p. 461(70) Vienna Convention on the Law of Treaties of 1969, p. 452(43), 453(46) 1973 Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts, p. 461(70)

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Sources of Law (cont.) 1978 Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries of 24 October 1978, p. 438– 439(14), 457(61), 463(74) 1982 Convention on the Law of the Sea of 1982, p. 443(20), 458–459(64), 460(66), 461(70), 465–466(80) 1995 Agreement of 20 April 1995 constituted in the form of an Agreed Minute, an Exchange of Letters, an Exchange of Notes and the Annexes thereto between the European Community and Canada on fisheries in the context of the NAFO Convention, p. 444(21), 446(22, 25), 447(27), 467–468(88) 1995 United Nations Agreement on Straddling Stocks of 1995, p. 458–459(64), 459–460(65), 461–462(70), 466(81) 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, p. 461–462(70) Declaration

Canadian declaration accepting the compulsory jurisdiction of the Court of 10 September 1985, p. 438(14), 438–439(14), 456(59) Canadian declaration accepting the compulsory jurisdiction of the Court of 10 May 1994, p. 435(3), 438(13), 451(39, 40, 41), 456(57, 59), 457(60), 466(84), 467(85), 467(87)

Inter(national) legal references

Malagasy Ordinance No. 93–022 of 1993 regulating fishing and aquaculture, p. 461(70) Algerian Legislative Decree No. 94–13 of 28 May 1994, p. 461(70) Canadian Coastal Fisheries Act of 1994, p. 435(1), 439(15), 443(19), 444–445(21), 450(34), 457–458(61), 458–459(64), 462(72), 465(80), 466(83) Regulation (EC) No. 894/97 of 29 April 1997, p. 461(70) Argentine Law No. 24922 of 6 January 1998, p. 461(70) Canadian Bill C-29, p. 439(15), 457(60), 463(75), 466(81) Canadian Bill C-8, p. 441(16), 465(80) Canadian criminal code, p. 441(16), 466(83) Coastal Fisheries Protection Regulations, p. 441(17), 446(22), 457–458(61), 460(66), 462(72), 466(82)

Others

NAFO/FC/Doc.96/1, p. 461(70)



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Representation of Parties Spain Agent & Counsel

Mr. José Antonio Pastor Ridruejo, Head of the International Legal Service of the Ministry of Foreign Affairs, Professor of International Law at the Complutense University of Madrid, (as Agent and Counsel (until 31 October 1998); Mr. Aurelio Pérez Giralda, Director of the International Legal Service of the Ministry of Foreign Affairs, as Agent (from 1 November 1998);

Co-agent

Mr. Félix Valdés Valentín-Gamazo, Minister-Counsellor, Embassy of Spain to the Netherlands,

Counsel & Advocates Mr. Pierre-Marie Dupuy, Professor of International Law at the University Panthéon-Assas (Paris II), Mr. Keith Highet, Member of the Bars of the District of Columbia and New York, Mr. Antonio Remiro Brotóns, Professor of International Law at the Autonomous University of Madrid, Mr. Luis Ignacio Sánchez Rodríguez, Professor of International Law at the Complutense University of Madrid, Advisers

Mr. Carlos Domínguez Díaz, Embassy Secretary, Assistant Director-General for International Fisheries Management Organizations, Ministry of Agriculture and Fisheries, Mr. Juan José Sanz Aparicio, Embassy Secretary, Department of International Legal Affairs, Ministry of Foreign Affairs

Canada Agent & Advocate

His Excellency Mr. Philippe Kirsch, Q.C., Ambassador and Legal Adviser to the Department of Foreign Affairs and International Trade

Deputy Agent & Advocate

Mr. Blair Hankey, Associate General Counsel, Department of Foreign Affairs and International Trade

Senior Counsel & Advocate

Mr. L. Alan Willis, Q.C., Department of Justice

Counsel & Advocate Mr. Prosper Weil, Professor Emeritus, University of Paris Counsel

Ms. Louise de La Fayette, University of Southampton Mr. Paul Fauteux, Department of Foreign Affairs and International Trade Mr. John F.G. Hannaford, Department of Foreign Affairs and International Trade

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Canada (cont.) Ms. Ruth Ozols Barr, Department of Justice Ms. Isabelle Poupart, Department of Foreign Affairs and International Trade Ms. Laurie Wright, Department of Justice Advisers

Mr. Malcolm Rowe, Q.C., Government of Newfoundland and Labrador Mr. Earl Wiseman, Department of Fisheries and Oceans

Administrative Officers

Ms. Manon Lamirande, Department of Justice Ms. Marilyn Langstaff, Department of Foreign Affairs and International Trade Ms. Annemarie Manuge, Department of Foreign Affairs and International Trade Mr. Robert McVicar, Department of Foreign Affairs and International Trade Ms. Lynn Pettit, Department of Foreign Affairs and International Trade

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France)

General List No.: 97 Mean(s) and date of institution of the case: Request for an Examination of the Situation (21 August 1995) Statement of claim/question: New Zealand asks the Court to adjudge and declare: “(i) that the conduct of the proposed nuclear tests will constitute a violation of the rights under international law of New Zealand, as well as of other States; further or in the alternative: (ii) that it is unlawful for France to conduct such nuclear tests before it has undertaken an Environmental Impact Assessment according to accepted international standards. Unless such an assessment establishes that the tests will not give rise, directly or indirectly, to radioactive contamination of the marine environment the rights under international law of New Zealand, as well as the rights of other States, will be violated”; Basis of jurisdiction invoked by the Applicant(s): Paragraph 63 of the ICJ Judgment of 20 December 1974 (I.C.J. Reports 1974, p. 477) Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

21 August 1995 to 22 September 1995

Preliminary objection

28 August 1995 to 22 September 1995

Public sittings

11–12 September 1995

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Orders Date of Order and Authority 22 September 1995 Court – President Bedjaoui

Content Please refer Section B

Section B – Order of 22 September 1995 Official citation: Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, p. 288 Date of Judgment: 22 September 1995 Authoritative text: French Composition of the Court: President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 307, para. 68) THE COURT, (1) By twelve votes to three, Finds that the “Request for an Examination of the Situation” in accordance with paragraph 63 of the Judgment of the Court of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, submitted by New Zealand on 21 August 1995, does not fall within the provisions of the said paragraph 63 and must consequently be dismissed; IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins AGAINST: Judges Weeramantry, Koroma, Judge ad hoc Sir Geoffrey Palmer (2) By twelve votes to three, Finds that the “Further Request for the Indication of Provisional Measures” submitted by New Zealand on the same date must be dismissed;



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IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins AGAINST: Judges Weeramantry, Koroma, Judge ad hoc Sir Geoffrey Palmer (3) By twelve votes to three, Finds that “Application for Permission to Intervene” submitted by Australia on 23 August 1995, and the “Applications for Permission to Intervene” and “Declarations of Intervention” submitted by Samoa and Solomon Islands on 24 August 1995, and by the Marshall Islands and the Federated States of Micronesian 25 August 1995, must likewise be dismissed. IN FAVOUR: President Bedjaoui, Vice-President Schwebel, Judges Oda, Guillaume, Shahabuddeen, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins AGAINST: Judges Weeramantry, Koroma, Judge ad hoc Sir Geoffrey Palmer Declarations/Opinions Declaration

Vice-President Schwebel and Judges Oda and Ranjeva

Separate Opinion

Judge Shahabuddeen

Dissenting Opinion

Judges Weeramantry, Koroma and Judge ad hoc Sir Geoffrey Palmer

Sources of Law ICJ Statute

Art. 40(1), p. 300(40), 303(52) Art. 40, p. 301(43) Art. 41, p. 291(8) Art. 60, p. 300(40), 301(43), 303(50) Art. 61, p. 299(36), 300(40) Art. 62, p. 292(11) Art. 63, p. 292(11)

ICJ Rules of Court

Art. 26(1.b), p. 302(44), 306(66) Art. 38(5), p. 295(23), 300–301(40) Art. 66(3), p. 292(9), 296(29) Art. 74(4), p. 296(29) Art. 79, p. 295(24)

174

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Sources of Law (cont.) ICJ case-law

Nuclear Tests (Australia v. France; New Zealand v. France), [I.C.J. Report 1974, p. 477], p. 289(3), Judgement of 20 December 1974, p. 288–289(1), 289(2)(3)(4), 292(13), 293(18), 294(19)(22), 295(23), 297(32), 298(33)(34), 298–299(35), 299(36)(38)(39), 300(40), 301(43), 302(44)(45) (47), 303(50)(52), 304(55)(56), 306(65)(66) [I.C.J. Reports 1974, p. 256(11)], p. 305(58)(59) Nuclear Tests (Australia v. France), [I.C.J. Reports 1973, p. 138(18)], p. 291(8), 293(17),

Treaties

1928 General Act for the Pacific Settlement of International Disputes of 26 September 1928, p. 289(3), 289–290(4), 293(18), 302(45) 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region of 25 November 1986 (or Noumea Convention), p. 290(5), 298(35), 298–299(35)

Case Concerning Kasikili/Sedudu Island (Botswana/Namibia)

General List No.: 98 Mean(s) and date of institution of the case: Special Agreement (29 May 1996) Statement of claim/question: The Court is asked to determine, on the basis of the Anglo-German Treaty of 1 July 1890 and the rules and principles of international law, the boundary between Namibia and Botswana around Kasikili/ Sedudu Island and the legal status of the Island Basis of jurisdiction invoked: Special Agreement between Botswana and Namibia of 15 February 1996 Section A – Procedural and Organizational Aspects Duration and Public sittings Total

Duration (from – to)

Public sittings

29 May 1996 to 13 December 1999

Between 15 February and 5 March 1999

Orders Date of Order and Authority

Content

24 June 1996 Court – President Bedjaoui

The Court fixes 28 February 1997 for the filing by each of the Parties of a Memorial and 28 November 1997 for the filing of a Counter-Memorial

27 February 1998 Court – President Schwebel

Fixing of time-limits: 27 November 1998 – Reply of both Parties

176

Kasikili/Sedudu Island (Botswana/Namibia) Section B – Judgment

Official citation: Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999, p. 1045 Date of Judgment: 13 December 1999 Authoritative text: English Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Registrar ValenciaOspina Headnotes: Special Agreement. Tasks of the Court – Determination of boundary around Kasikili/Sedudu Island – Determination of Island’s legal status. Applicable law – Anglo-German Treaty of 1890 – Rules and principles of international law. 1890 Treaty – Rules of interpretation as expressed in the 1969 Vienna Convention – Consideration of present-day scientific knowledge. Text of Article III of the Treaty – Reference in English version to “centre of the main channel”, in German version to “thalweg” of that channel – Various definitions of the term “thalweg” – Equivalence of expressions “centre of the main channel” and “Thalweg des Hauptlaufes” – Method to be employed for interpretation of these expressions – Determination of “main channel” – Ordinary meaning of words “main channel” – Criteria enabling “main channel” to be identified – A number of criteria to be applied – depth; width; flow; navigability – Questions of visibility (or general physical appearance) and of the bed profile configuration of the channel. Object and purpose of the 1890 Treaty. Travaux préparatoires. Subsequent practice of the parties to the Treaty and their successors – Article 31, paragraph 3, of 1969 Vienna Convention – Eason Report (1912) – Trollope-Redman correspondence (1947–1951) – Joint Survey of 1985 – Presence of Masubia on the Island – Relevance of facts recorded, in absence of subsequent practice. Maps – Evidentiary value – Map officially expressing intention of contracting parties – Express of implied agreement on validity of a boundary depicted on a map. Location of boundary in the “main channel” – term “thalweg” determinative in Article III, paragraph 2, of the Treaty – Line of deepest soundings.

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Acquisitive prescription – Reference in Special Agreement to “rules and principles of international law” – Basic conditions as set out by Namibia Status of Kasikili/Sedudu Island – Kasane Communiqué of 1992 – Mutual guarantees for freedom of navigation. Text of the operative paragraph(s) (p. 1108, para. 104) THE COURT, (1) By eleven votes to four, Finds that the boundary between the Republic of Botswana and the Republic of Namibia follows the line of deepest soundings in the northern channel of the Chobe River around Kasikili/Sedudu Island; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Higgins, Kooijmans AGAINST: Vice-President Weeramantry; Judges Fleischhauer, Parra-Aranguren, Rezek (2) By eleven votes to four, Finds that Kasikili/Sedudu Island forms part of the territory of the Republic of Botswana; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Higgins, Kooijmans AGAINST: Vice-President Weeramantry; Judges Fleischhauer, Parra-Aranguren, Rezek (3) Unanimously, Finds that, in the two channels around Kasikili/Sedudu Island, the nationals of, and vessels flying the flags of, the Republic of Botswana and the Republic of Namibia shall enjoy equal national treatment. Declarations/Opinions Declaration

Judges Ranjeva, Koroma and Higgins

Separate Opinion

Judges Oda and Kooijmans

Dissenting Opinion

Vice-President Weeramantry, Judges Fleischhauer, ParraAranguren and Rezek

178

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Sources of Law League Mandate

League of Nations Mandate of South Africa, p. 1080–1082(59), 1091(68)

UN Charter

UN Charter, p. 1048–1049(1), 1059(19)

ICJ Statute

Art. 31(3), p. 1048–1050(1. Art. VIII) Art. 38(1), p. 1059(19), 1102(93) Art. 40(3), p. 1048–1050(1. Art. VII), 1051(3)

ICJ Rules of Court

Art. 42, p. 1051(3) Art. 53(2), p. 1051(6) Art. 56(1), p. 1051(7) Art. 56(3), p. 1051(7) Art. 58(2), p. 1051(8)

ICJ case-law

Current Order of 24 June 1996, p. 1051(4) Order of 27 February 1998, p. 1051(5) Previous Territorial Dispute (Libya/Chad), [I.C.J. Reports 1994, p. 21(41)], p. 1059(18), 1060(20) [I.C.J. Reports 1994, pp. 34–37(66–71)], p. 1076(50) Oil Platforms, [I.C.J. Reports 1996(II), p. 812(23)], p. 1059(18) Temple of Preah Vihear, [I.C.J. Reports 1962, p. 34], p. 1072–1073(43) [I.C.J. Reports 1962, pp. 33–35], p. 1076(50), 1100(86) [I.C.J. Reports 1962, pp. 6 et seq.], p. 1097(82) Corfu Channel, [I.C.J. Reports 1949, p. 25], p. 1076(50) Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), I.C.J. Reports 1960, p. 206–207], p. 1076(50) Certain Expenses of the United Nations, [I.C.J. Reports p. 157, 160–161 and 172–175], p. 1076(50) Military and Paramilitary in and against Nicaragua, [I.C.J. Reports 1984, p. 408–413 (36–37)], p. 1076(50) Legality of the Use by a State of Nuclear Weapons in Armed Conflict, [I.C.J. Reports 1996(I), p. 75(19)], p. 1076(50) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Report 1971, p. 58(133)], p. 1091–1092(69)



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Sources of Law (cont.) Frontier Dispute (Burkina Faso/Republic of Mali)[I.C.J. Reports 1986, p. 582(54)], p. 1098(84) [I.C.J. Reports 1986, p. 583(56)], p. 1100(87) Arbitral Awards

Controversia sobre el recorrido de la traza del límite entre el Hito 62 y el Monte Fitz Roy (Argentina/Chile) [Dispute concerning the course of the Frontier between B.P.62 and Mount Fitzroy, Argentina/Chile)] “Laguna del desierto”, Arbitral Award of 21 October 1994, International Law Reports (ILR), Vol. 113, p. 76, para. 157; Revue générale de droit international public (RGDIP), Vol. 2, 1996, p. 592, para. 157 Argentina-Chile Frontier Case (1966), UN, Reports of International Arbitral Awards (RIAA), Vol. XVI, p. 177–180; International Law Reports (ILR), Vol. 38, p. 94–98], p. 1064(50) Arbitral Award of 23 January 1933 by the Special Boundary Tribunal constituted by the Treaty of Arbitration between Guatemala and Honduras [(League of Nations Treaty Series, Vol. 137, p. 259; UN Reports International Arbitral Awards (RIAA), Vol. II, p. 1365], p. 1066(33)

UN resolutions

General Assembly 2145 (XXI) of 27 October 1966, p. 1091(69) Security Council 276(1970) of 30 January 1970, p. 1091(69)

Treaties

1827 Boundary Convention between Baden and France of 30 January 1827, p. 1066(33) 1890 Anglo-German Agreement of 1 July 1890, p. 1048–1049(1), 1051–1052(8), 1053(11, 12), 1054(13), 1058(17), 1059(18), 1060(21), 1062(25), 1065(31), 1070(37), 1071(40), 1072(41, 42, 43), 1074(45, 46), 1075(47), 1076(51, 52), 1077(54, 55), 1079(57), 1086–1087(62), 1087(63, 64), 1090(67), 1092(71), 1094(74), 1095(75, 76), 1096(78, 79, 80), 1097(82), 1098(84), 1099(85), 1100(87, 89), 1101(90, 91), 1102(92, 93), 1105(98), 1106(100) 1969 Vienna Convention on the Law of Treaties of 1969, p. 1059(18), 1060(20), 1062(25), 1075(47), 1076(52), 1077– 1078(55), 1087(63), 1094(73), 1095(75), 1096(78, 79) 1984 Agreement of December 1984 between Botswana and South Africa, p. 1076(52) 1996 Special Agreement between Botswana and Namibia of 15 February 1996, p. 1048(1), 1051(4), 1051–1052(8), 1053(11), 1058(16, 17), 1059(19), 1102(92, 93)

180

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Sources of Law (cont.) Inter(national) legal references

Report on the main channel of the Linyanti (or Chobe) river of 5 August 1912, p. 1076–1077(53) Eason Report of 1912, p. 1077(55), 1093–1094(72), 1096(81) US Supreme Court of 19 May 1933 in the case Vermont v. New Hampshire, United States Reports, [Vol. 289, p. 619(1933)], p. 1066(33) Joint Report of Major Trollope and Mr. Redman of 19 January 1948, p. 1080(59), 1083–1085(60), 1086(61) Trollope-Redman Correspondence of 1948, p. 1071(40), 1094(74), Laws of Botswana Aquatic Weeds (Control) Act of December 1971, p. 1106–1107(102) Joint Survey Report of 15 July 1985, p. 1087–1088(64), 1100(86) Communiqué of Presidents of Botswana, Namibia and Zimbabwe of 24 May 1992, p. 1058(15), 1106(102) Report of Joint Team of Technical Experts of 20 August 1994, p. 1058(15, 16)

ILC Yearbooks

[ILC Yearbook 1966, Vol. II, p. 221(14)], p. 1075(49)

International Organisations

Charter of the Organisation African Unity, p. 1048–1049(1), 1059(19) OAU Resolution AHG/Res.16(1) of 21 July 1964, p. 1059(19)

Others

Annuaire de l’Institut de droit international, [1887–1888, p. 182], p. 1062(25) Dictionnaire Français d’hydrologie de surface avec équivalents en anglais, espagnol, allemand, [Masson, 1986], p. 1063–1064(30) Water and Wastwater Control Engineering Glossary (Joint Editorial Board Representing the American Public Health Association and Water Pollution Control Federation, 1969), p. 1064(50) Hertslet’s Map of Africa by Treaty of 1909, p. 1098(84)

Representation of Parties Botswana Agent, Counsel & Advocate

Mr. Abednego Batshani Tafa, Advocate of the High Court and Court of Appeal of Botswana, Deputy Attorney-General

Co-Agent

H.E. Mr. S.C. George, Ambassador of the Republic of Botswana to the European Union, Brussels



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Botswana (cont.) Counsel & Advocates Mr. Molosiwa L. Selepeng, Permanent Secretary for Political Affairs, Office of the President Professor Ian Brownlie, C. B.E., Q.C., F.B.A., Chichele Professor of Public International Law, University of Oxford, Member of the International Law Commission, Member of the English Bar, Member of the Institut de droit international Lady Fox Q.C., former Director of the British Instituted of International and Comparative Law, Member of the English Bar, Associate Member of the Institute de droit international Dr. Stefan Talmon, Rechtsassessor, D.Phil (Oxon), LL.M (Cantab), Wissenschaftlicher Assistant in the Law Faculty of the University of Tübingen Mr. Timothy Daniel, Solicitor of the Supreme Court; Partner, D.J. Freeman (Solicitors) of the City of London Mr. Alan Perry, Solicitor of the Supreme Court; Partner, D.J. Freeman (Solicitors) of the City of London Mr. David Lerer, Solicitor of the Supreme Court; Partner, D.J. Freeman (Solicitors) of the City of London Mr. Christopher Hackford, Solicitor of the Supreme Court; Assistant, D.J. Freeman (Solicitors) of the City of London Mr. Robert Paydon, Solicitor of the Supreme Court; Assistant, D.J. Freeman (Solicitors) of the City of London Scientific and Technical Advisers

Professor F.T.K. Sefe, Professor of Hydrology, Department of Environmental Science, University of Botswana, Gaborone Mr. Isaac Muzila, F.R.I.C.S., Prof. M.I.T.E.S. (S.A.), L.S. (Bots.), Chief Surveyor and Deputy to Director, Department of Surveys and Mapping, Botswana Mr. Scott B. Edmonds, Director of Cartographic Operations, GeoSystems Global Corporation, Columbia, Maryland (USA) Mr. Robert C. Rizzutti, Senior Mapping Specialist, GeoSystems Global Corporation, Columbia, Maryland (USA) Mr. Justin E. Morrill, Senior Multimedia Designer, GeoSystems Global Corporation, Columbia, Maryland (USA)

Information Adviser

Mr. Bapasi Mphusu, Chief Press Officer, Department of Information and Broadcasting, Government of Botswana

Administrators

Mrs. Coralie Ayad, D.J. Freeman (Solicitors) of the City of London Mrs. Marilyn Beeson, D.J. Freeman (Solicitors) of the City of London Ms. Michelle Burgoine, D.J. Freeman (Solicitors) of the City of London

182

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Namibia Agent, Counsel & Advocate

Dr. Albert Kawana, Permanent Secretary, Ministry of Justice of Namibia

Deputy Agent

H.E. Dr. Zedekia J. Ngavirue, Ambassador of the Republic of Namibia to the Netherlands

Counsel & Advocates Professor Abram Chayes, Felix Frankfurter Professor of Law Emeritus, Harvard Law School Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of Cambridge, Member of the Institut de droit international Mr. Jean-Pierre Cot, Professor Emeritus, Université de Paris I (Panthéon-Sorbonne), Member of the Paris and Brussels Bars, Vice-President of the European Parliament Professor Dr. Jost Delbrück, Director of Walther-Schücking Institute of International Law, University of Kiel Professor Dr. Julio Faundez, Professor of Law, University of Warwick Advocates

Professor W.J.R. Alexander, Emeritus Professor of Hydrology, University of Pretoria Professor Keith S. Richards, Department of geography, University of Cambridge Colonel Dennis Rushworth, Former Director of the Mapping and Charting Establishment, Ministry of Defence of the United Kingdom Dr. Lazarus Hangula, Director, Multidisciplinary Research Centre, University of Namibia

Counsel & Advisers

Dr. Arnold M. Mtopa, Chief Legal Officer, Ministry of Justice of Namibia Dr. Collins Parker, Chief Legal Officer, Ministry of Justice of Namibia Mr. Edward Helgeson, Fellow, Lauterpacht Research Centre for International Law, University of Cambridge Ms. Tonya Putnam, Harvard Law School

Technical Adviser

Mr. Peter Clark, Former Chief Map Research Officer, Ministry of Defence, United Kingdom



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183

Namibia (cont.) Administrative Staff

Mr. Samson N. Muhapi, Special Assistant to the Permanent Secretary, Ministry of Justice of Namibia Ms. Kyllikki M. Shaduka, Private Secretary, Ministry of Justice of Namibia Ms. Mercia G. Louw, Private Secretary, Ministry of Justice of Namibia

Information Advisers Mr. Peter Denk, Reporter Mr. Muyenga Muyenga, Reporter

Case Concerning the Vienna Convention on Consular Relations (Paraguay v. USA)

General List No.: 99 Mean(s) and date of institution of the case: Application (3 April 1998) Statement of claim/question: Paraguay requests the Court to adjudge and declare: “(1) that the United States, in arresting, detaining, trying, convicting, and sentencing Angel Francisco Breard, as described in the preceding statement of facts, violated its international legal obligations to Paraguay, in its own right and in the exercise of its right of diplomatic protection of its national, as provided by Articles 5 and 36 of the Vienna Convention; (2) that Paraguay is therefore entitled to restitutio in integrum; (3) that the United States is under an international legal obligation not to apply the doctrine of ‘procedural default’, or any other doctrine of its internal law, so as to preclude the exercise of the rights accorded under Article 36 of the Vienna Convention; and (4) that the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against Angel Francisco Breard or any other Paraguayan national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power’s functions are of an international or internal character; and that, pursuant to the foregoing international legal obligations, (1) any criminal liability imposed on Angel Francisco Breard in violation of international legal obligations is void, and should be recognized as void by the legal authorities of the United States;

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185

(2) that United States should restore the status quo ante, that is, reestablish the situation that existed before the detention of, proceedings against, and conviction and sentencing of Paraguay’s national in violation of the United States’ international legal obligations took place; and (3) the United States should provide Paraguay a guarantee of the non-repetition of the illegal acts”; Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute and Art. 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

3 April 1998 to 10 November 1998

Provisional Measures

3 April 1998 to 9 April 1998

Public sittings 7 April 1998

Orders Date of Order and Authority

Content

9 April 1998 Please refer Section B Court-Vice-President (Acting President) Weeramantry 9 April 1998 Court – Vice-President (Acting President) Weeramantry

Fixing of time-limits: 9 June 1998 – Memorial of Paraguay 9 September 1998 – Counter-Memorial of the USA

8 June 1998 Court – Vice-President (Acting President) Weeramantry

Extension of time-limits: From 9 June to 9 October 1998 – Memorial of Paraguay From 9 September 1998 to 9 April 1999 – CounterMemorial of the USA

10 November 1998 Court – Vice-President (Acting President) Weeramantry

Removal of the case from the list following the discontinuance by Paraguay of its proceedings against the USA

186

Vienna Convention on Consular Relations (Paraguay v. USA)

Request for extension of time-limits State Party

Remarks

Paraguay (1 time)

Request to extend to 9 August 1998 the time-limit for the filing of Memorial – No objection by the USA and proposes to extend to 9 October 1998 and 9 April 1999 the time-limits to file Memorial and Counter-Memorial by Paraguay and the USA respectively

Section B – Provisional Measures Official citation: Vienna Convention on Consular Relations (Paraguay v. United States of America), I.C.J. Reports 1998, p. 248 Date of Order: 9 April 1998 Authoritative text: English Composition of the Court: Vice-President (Acting President) Weeramantry; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 258, para. 41) THE COURT, Unanimously, I. Indicates the following provisional measures: The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order. Declarations/Opinions Declaration

President Schwebel and Judges Oda and Koroma



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187

Sources of Law ICJ Statute

Art. 36(1), p. 249(1) Art. 40(2), p. 252(11) Art. 40(3), p. 253(14) Art. 41, p. 248, 251(6), 254(21), 257(35), 257(39) Art. 48, p. 248 Art. 63(1), p. 253(15)

ICJ Rules of Court

Art. 13, p. 252(12) Art. 13(1), p. 252(10) Art. 32, p. 252(12) Art. 32(1), p. 252(10) Art. 38(4), p. 252(11) Art. 42, p. 253(14) Art. 73, p. 248, 251(6) Art. 73(2), p. 252(11) Art. 74, p. 248, 251(6) Art. 74(3), p. 253(16) Art. 74(4), p. 252(12) Art. 75, p. 248, 251(6)

ICJ case-law

United States Diplomatic and Consular Staff in Tehran, [I.C.J. Reports 1980, p. 25–26], p. 255(26) [I.C.J. Reports 1979, p. 19(36)], p. 257(36) Nuclear Tests (Australia v. France), I.C.J. Reports 1973, p. 103], p. 257(36) Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia), [I.C.J. Reports 1993, p. 19(34)], p. 257(36)

Treaties

1963 Vienna Convention on Consular Relations of 1963, p. 248, 249(1, 2, 3), 250(4, 5), 251(7), 253(15, 18), 254(20, 22), 255(25, 27), 256(28, 29, 30, 31) 1963 Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations, p. 249(1), 153(15), 255(24, 25, 26, 27), 256(31), 257(34) 1966 International Covenant on Civil and Political Rights, p. 251(8)

Request for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon)

General List No.: 101 Mean(s) and date of institution of the case: Application (28 October 1998) Statement of claim/question: Nigeria “On the basis of the foregoing considerations, Nigeria requests the Court to adjudge and declare that the Court’s Judgment of 11 June 1998 is to be interpreted as meaning that: so far as concerns the international responsibility which Nigeria is said to bear for certain alleged incidents: (a) the dispute before the Court does not include any alleged incidents other than (at most) those specified in Cameroon’s Application of 29 March 1994 and Additional Application of 6 June 1994; (b) Cameroon’s freedom to present additional facts and legal considerations relates (at most) only to those specified in Cameroon’s Application of 29 March 1994 and Additional Application of 6 June 1994; and (c) the question whether facts alleged by Cameroon are established or not relates (at most) only to those specified in Cameroon’s Application of 29 March 1994 and Additional Application of 6 June 1994.” Basis of jurisdiction invoked: Art. 60 of the ICJ Statute and Art. 98 of the Rules of Court Section A – Procedural and Organizational Aspects Duration and Public sittings Total

Duration (from – to)

Public sittings

28 October 1998 to 25 March 1999

None



Interpretation of the Judgment of 11 June 1998 in Boundary Dispute between Cameroon and Nigeria (Nigeria v. Cameroon)

189

Section B – Judgment Official citation: Request for Interpretation of the Judgment of 11 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999, p. 31 Date of Judgment: 25 March 1999 Authoritative text: French Composition of the Court: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Mbaye, Ajibola; Registrar Valencia-Ospina. Headnotes: Article 60 of the Statute – Jurisdiction of the Court to entertain a request for interpretation of a judgment on preliminary objections – Request can relate only to the operative part of the judgment and to reasons inseparable therefrom. Admissibility of the request for interpretation: Need to avoid impairing the finality of the judgment to be interpreted or delaying implementation thereof – Primacy of the principle of res judicata. Judgment of 11 June 1988 – Rejection of Nigeria’s sixth preliminary objection – Question of the conditions for admissibility of an application at the time of its introduction, and the question of the admissibility of the presentation of additional facts and legal grounds – Principle that the freedom to present additional facts and legal considerations not included in the application is subject to the limitation that the dispute must not be transformed – Finding that Cameroon had not so transformed the dispute – Additional “incidents” and additional “facts” – Principle of audi alteram partem. Submissions of the request already considered and rejected in the Judgment of 11 June 1998 – Submissions seeking to remove from the Court’s consideration elements of fact and law the presentation of which has already been authorized by that Judgment, or which have not yet been put forward. Costs – Articles 64 of the Statute and 97 of the Rules – General rule that each party shall bear its own costs.

190

Interpretation of the Judgment of 11 June 1998 in Boundary Dispute between Cameroon and Nigeria (Nigeria v. Cameroon)

Text of the operative paragraph(s) (p. 40, para. 19) The Court, (1) by thirteen votes to three, Declares inadmissible the request for interpretation of the Judgment of 11 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroonv.Nigeria), Preliminary Objections, presented by Nigeria on 28 October 1998; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Mbaye AGAINST:Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola (2) unanimously, Rejects Cameroon’s request that Nigeria bear the additional costs caused to Cameroon by the above-mentioned request for interpretation. Declarations/Opinions Dissenting Opinion

Vice-President Weeramantry, Judge Koroma and Judge ad hoc Ajibola

Sources of Law ICJ Statute

Art. 31(3), p. 33(6) Art. 40(2), p. 33(2) Art. 40(3), p. 33(3) Art. 60, p. 35(10), 35(10), 35–36(11), 36(12), 39(17) Art. 64, p. 39(18)

ICJ Rules of Court

Art. 13(3), p. 33(2) Art. 38, p. 35–36(11), 38(15) Art. 38(2), p. 38(15) Art. 97, p. 39(18) Art. 98, p. 32(1) Art. 98(1), p. 35(10) Art. 98(3), p. 33(2) Art. 98(4), p. 33(5)

PCIJ case-law

Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, [P.C.I.J., Series A, No. 13, p. 11], p. 35(10)



Interpretation of the Judgment of 11 June 1998 in Boundary Dispute between Cameroon and Nigeria (Nigeria v. Cameroon)

191

Sources of Law (cont.) ICJ case-law

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J. Reports 1950, p. 402], p. 36–37(12) Application for Review of UNAT Judgment No. 158, [I.C.J. Reports 1973, p. 212(98)], p. 39–40(18) Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/ Libya) (Tunisia v. Libya), [I.C.J. Reports 1985, p. 223(56)], p. 36–37(12) Lockerbie (Libya v. UK), [I.C.J. Reports 1998, p. 26(44)], p. 38(15) Lockerbie (Libya v. USA), [I.C.J. Reports 1998, p. 130(43)], p. 38(15) Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, [I.C.J. Reports 1998], p. 32(1), 33(7), 34(8), 35(9, 11), 37(13), 38(15, 16), 40(19) [I.C.J. Reports 1998, p. 317(96)], p. 35–36(11) [I.C.J. Reports 1998, p. 317(96)], p. 38(15) [I.C.J. Reports 1998, p. 318(99)], p. 35–36(11)

Representation of Parties Nigeria Agent

H.E. Mr. Alhaji Abdullahi Ibrahim, SAN, OFR, Honourable Attorney-General of the Federation and Minister of Justice

Cameroon Agent

H.E. Mr. Laurent Esso, Minister of Justice, Keeper of the Seals

Co-Agents

Mr. Maurice Kamto, Professor at the University of Yaoundé II, Member of the Paris Bar Mr. Peter Ntamark, Professor of Law at the Faculty of Laws and Political Science, University of Yaoundé II, Barrister-at-Law, member of the Inner Temple

Deputy Agent

Mr. Alain Pellet, Professor at the University of Paris X-Nanterre and at the Institut d’etudes politiques, Paris

Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

General List No.: 102 Mean(s) and date of institution of the case: Special Agreement (2 November 1998) Statement of claim/question: “To determine on the basis of the treaties, agreements and any other evidence furnished by the Parties, whether sovereignty over Pulau Ligitan and Pulau Sipadan belongs to the Republic of Indonesia or to Malaysia” Basis of jurisdiction invoked: Special Agreement between Indonesia and Malaysia of 31 May 1997 entered into force on 14 May 1998 Section A – Procedural and Organizational Aspects Duration and Public sittings Total

Duration (from – to)

Public sittings

2 November 1998 – 17 December 2002

3 to 12 June 2002

Orders Date of Order and Authority

Content

10 November 1998 Court – President Schwebel

Fixing of time-limits: 2 November 1999 – Memorial of both Parties 2 March 2000 – Counter-Memorial of both Parties

14 September 1999 Court – President Schwebel

Extension of time-limits: From 2 March to 2 July 2000 – Counter-Memorial of both Parties



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Orders (cont.) Date of Order and Authority

Content

11 May 2000 President Guillaume

Extension of time-limits: From 2 July to 2 August 2000 – Counter-Memorial of both Parties

19 October 2000 President Guillaume

Fixing of time-limits: 2 March 2001 – Reply by each of the Parties

Request for extension of time-limits State Party Indonesia and Malaysia (2 times)

Remarks 1. Request for filing of Counter-Memorial to be extended until 2 July 2000 2. Request for filing of Counter-Memorial to be extended for one month

Section B – Merits Official citation: Case concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), Judgment of 17 December 2002: I.C.J. Reports 2002, p. 625 Date of Judgment: 17 December 2002 Authoritative text: English Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Weeramantry, Franck; Registrar Couvreur. Headnotes: Geographical context – Historical background- Bases on which the Parties found tlieir claims to the islands of Ligitan and Sipadan. Conventional title asserted by Indonesia (1891 Convention between Great Britain and the Netherlands). Indonesia’s argument that the 1891 Convention established the 4° 10' north parallel of latitude as the dividing line between the respective possessions of Great Britain and the Netherlands in the area of the disputed islands and that those islands therefore belong to it as successor to the Netherlands.

194

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Disagreement of the Parties on the interpretation to be given to Article IV of the 1891 Convention – Articles 31 and 32 of the Vienna Convention on the Law of Treaties reflect international customary law on the subject. Text of Article IV of the 1891 Convention – Clause providing “From 4° 10' north latitude on the east Coast the boundary-line shall be continued eastward along that parallel, across the Island of Sebittik . . .” – Ambiguity of the terms “shall be continued” and “across” – Ambiguity which could have been avoided had the Convention expressly stipulated that the 4° 10' north parallel constituted the line separating the islands under British sovereignty from those under Dutch sovereignty – Ordinary meaning of the term “boundary”. Context of the 1891 Convention – Explanatory Memorandum appended to the draft Law submitted to the Netherlands States-General with a view to ratification of the Convention – Map appended to the Memorandum shows a red line continuing out to sea along the 4° 10' north parallel – Line cannot be considered to have been extended in order to settle any dispute in the waters beyond Sebatik – Explanatory Memorandum and map never transmitted by the Dutch Government to the British Government but simply forwarded to the latter by its diplomatic agent in The Hague – Lack of reaction by the British Government to the line cannot be deemed to constitute acquiescence. Object and purpose of tlie Convention – Delimitation solely of the parties’ possessions within the island of Borneo. Article IV of the Convention, when read in context and in the light of the Convention’s object and purpose, cannot be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of Sebatik. Recourse to supplementary means of interpretation in order to seek a possible confirmation of the Court’s interpretation of the text of the Convention – Neither travaux préparatoires of the Convention nor circumstances of its conclusion support the position of Indonesia. Subsequent practice of the parties – 1915 Agreement between Great Britain and the Netherlands concerning the boundary between the State of North Borneo and the Dutch possessions on Borneo reinforces the Court’s interpretation of the 1891 Convention – Court cannot draw any conclusion from the other documents cited. Maps produced by the Parties – With the exception of the map annexed to the 1915 Agreement, cartographic material inconclusive in respect of the interpretation of Article IV. Court ultimately comes to the conclusion that Article IV determines the boundary between the two Parties up to the eastern extremity of Sebatik Island and does not establish any allocation line further eastwards. Question whether Indonesia or Malaysia obtained title to Ligitan and Sipadan by succession.



Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

195

Indonesia’s argument that it was successor to the Sultan of Bulungan, the original title-holder to the disputed islands, through contracts which stated that the Sultanate as described in the contracts formed part of the Netherlands Indies – Indonesia’s contention cannot be accepted. Disputed islands not mentioned by name in any of the international legal instruments cited – Islands not included in the 1878 grant by which the Sultan of Sulu ceded al1 his rights and powers over his possessions in Borneo to Alfred Dent and Baron von Overbeck – Court observes that, while the Parties both maintain that Ligitan and Sipadan were not terrae nullius during the period in question in the present case, they do so on the basis of diametrically opposed reasoning, each of them claiming to hold title to those islands. Malaysia’s argument that it was successor to the Sultan of Sulu, the original title-holder to the disputed islands, further to a series of alleged transfers of that title to Spain, the United States, Great Britain on behalf of the State of North Borneo, the United Kingdom, and Malaysia cannot be upheld. Consideration of the effectivités relied on by the Parties. Effectivités generally scarce in the case of very small islands which are uninhabited or not permanently inhabited, like Ligitan and Sipadan – Court primarily to analyse the effectivités which date from the period before 1969, the year in which the Parties asserted conflicting claims to Ligitan and Sipadan – Nature of the activities to be taken into account by the Court in the present case. Effectivités relied on by Indonesia – Activities which do not constitute acts a titrede souverain reflecting the intention and will to act in that capacity. Effectivités relied on by Malaysia – Activities modest in number but diverse in character, covering a considerable period of time and revealing an intention to exercise State functions in respect of the two islands – Neither the Netherlands nor Indonesia ever expressed its disagreement or protest at the time when these activities were carried out – Malaysia has title to Ligitan and Sipadan on the basis of the effectivités thus mentioned. Text of the operative paragraph(s) (p. 686) THE COURT, By sixteen votes to one, Finds that sovereignty over Pulau Ligitan and Pulau Sipadan belongs to Malaysia. IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra- Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Weeramantry AGAINST: Judge ad hoc Franck

196

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Declarations/Opinions Declaration

Judge Oda

Dissenting Opinion

Judge ad hoc Franck

Sources of Law UN Charter

Art. 102, p. 631(1)

ICJ Statute

Art. 31(2), p. 646(38) Art. 31(3), p. 632(6), 645(37) Art. 36, p. 630(1) Art. 38, p. 631(1) Art. 40, p. 631(1) Art. 40(3), p. 631(1) Art. 43, p. 630(1) Art. 46, p. 630(1) Art. 62, p. 632(8)

ICJ Rules of Court

Art. 31, p. 632(9) Art. 53(2), p. 633(10)

PCIJ case-law

Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne, [P.C.I.J., Series B, No. 12, p. 20], p. 651(49) Legal Status of Eastern Greenland (Denmark v. Norway), [P.C.I.J. Series A/B No. 53, p. 45–46.], p. 682(134)

ICJ case-law

Current Order of 10 November 1998, [I.C.J. Reports 1998, p. 429)], p. 632(4) Order of 11 May 2000, [I.C.J. Reports 2000, p. 9)], p. 632(4) Order of 10 November 1998, [I.C.J. Reports 2000, p. 173)], p. 632(5) Judgment of 23 October 2001, Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), Application for Permission to Intervene, Judgment, [I.C.J. Reports 2001, p. 575)], p. 632(8) Previous Territorial Disputes (Libyan Arab Jamahiriya/Chad), [ Judgment, I.C.J. Reports 1994, p. 21–22(41)], p. 645(37) [ Judgment, I.C.J. Reports 1994, p. 27(55)], p. 653(53) [ Judgment, I.C.J. Reports 1994, p. 38(75–76)], p. 678(126)



Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

197

Sources of Law (cont.) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [ Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 18(33)], p. 645(37) [ Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 21(40)], p. 653(53) [ Judgment, Merits, I.C.J. Reports 2001, p. 99–100(197)], p. 685(147) Oil Platforms (Islamic Republic of Iran v. United States of America), [Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 812(23)], p. 645(37) Kasikili/Sedudu Island (Botswana/Namibia), [I.C.J. Reports 1999 (II), p. 1059(18)], p. 645(37) [I.C.J. Reports 1999 (II), p. 1075(48)], p. 645–646(37) [I.C.J. Reports 1999 (II), p. 1098(84)], p. 667(88) Legality of the Use by a State of Nuclear Weapons in Armed Conflict, [I.C.J. Reports 1996(I), p. 75(19)], p. 645–646(37) Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 582(54)], p. 667(88) [I.C.J. Reports 1986, p. 587(63)], p. 678(126) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, [I.C.J. Reports 2002, p. 353–354(68)], p. 678(126) The Minquiers and Ecrehos case, Judgement of November 17th, 1953: [I.C.J. Reports 1953, p. 71], p. 685(147) Treaties

Act of Re-Submission between Spain and the Sultan of Sulu, p. 637(15) 1602 Charter, p. 637(16) 1814 London Convention of 13 August 1814, p. 637(16), 638(19) 1824 Treaty between Great Britain and the Netherlands of 17 March 1824, p. 638(19) 1836 Treaty between Spain and the Sultan of Sulu of 23 September 1836, p. 639–640(21), 670(100), 674–75(109) 1877 Protocol between Spain, Germany and Great Britain of 11 March 1877, p. 639(21), 671(101) 1878 Protocol between Spain and Sulu of 22 July 1878, p. 637(15), 670(100), 675(111, 113)

198

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Sources of Law (cont.) 1885 Protocol between Spain, Germany and Great Britain of 7 March 1885, p. 639–640(21), 644(35), 670(100), 671(101), 674(109), 675(111, 112, 113) 1891 Convention between the Netherlands and Great Britain of 20 June 1891, p. 640(23), 641(27), 643(32, 34), 644(35, 36), 646(38, 39, 40), 647(41), 648(42, 44), 649(45, 46), 650(47), 651(49), 652(50, 51, 52), 653(53, 54), 653–54(55), 654–55(56), 655(58), 656(59, 60, 61, 62), 657(64), 658(66, 67), 659(70), 660(71), 661(72), 662(73, 74, 75), 664(79), 665(80, 81, 83), 666(85), 667(88, 89, 90), 670(99), 678(123, 125) 1898 Treaty of Peace of Paris of 10 December 1898, p. 640(24, 25), 671(102, 103), 676(115, 116) 1899 Treaty of Peace, 671(102) 1900 Treaty of 7 November 1900, p. 640(24), 671(102. 103), 676(115, 116, 117) 1915 Agreement between Great Britain and the Netherlands of 28 September 1915, p. 641(27), 644(35), 657(64), 658(67, 68), 659(69), 659(70), 660(71), 661(72), 662(73), 666(85, 87), 667(89), 668(91, 92), 669(94, 96) 1928 Agreement between Great Britain and the Netherlands of 26 March 1928, p. 641(27), 658(66, 67, 68), 659(69), 661(72), 662(73) 1930 Convention between the USA and Great Britain of 2 January 1930, p. 641(28), 673(105, 106), 677(119, 120, 121), 683–84(142) 1963 Agreement between the Federartion of Malaya, UK, North Borneo, Sarawak and Singapore of 9 July 1963, p. 642(30), 674(107), 677(122) 1969 Delimitation Agreement between Indonesia and Malaysia of 1969, p. 642(31) 1969 Vienna Convention on the Law of Treaties of 23 May 1969, p. 645(37), 648(44), 650–51(48), 656(59, 60, 61) 1905 Treaty between the Netherlands and Great Britain of 1905, 661(72) 1976 Treaty of Amity and Co-Operation in Southeast Asia, p. 630(1) 1998 Special Agreement between Indonesia-Malaysia of 14 May 1998, p. 630(1), 632(3), (4), (5), 642(31)



Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

199

Sources of Law (cont.) Inter(national) legal references

1888 Agreement between Great Britain and BNBC of 12 May 1888, p. 640(22) 1917 Turtle Preservation Ordinance of 1917, p. 684(143) 1930 Land Ordinance of 1930, p. 684(144) 1946 Agreement between Great Britain and BNBC of 26 June 1946, p. 642(29), 673(105) 1966 Agreement between Indonesian State-owned company P.N. Pertambangan Minjak and the Japan Petroleum Exploration Company of 6 October 1966, p. 642(31), 664(78, 79) Confirmation of Cession by the Sultan of Sulu of 22 April 1903, p. 641(25) Cession of 1878, p. 641(25), 644(35) Memorandum of Ambassador Sir H.M. Durand of Great Britain to the USA of 23 June 1906, p. 641(26) Exchange of Notes of 3 and 10 July 1907, p. 641(26), 667–68(90), 671–72(103), 673(105), 676(118) Letter from the US Secretary of State of 23 October 1903, p. 676(117) Letter from the Dutch Minister in London to the British Secretary of Foreign Affairs of 2 February 1891, p. 654(56) Reply of British Secretary of Foreign Affairs to the Dutch Minister in London of 11 February 1891, p. 654(56) Exchange of Letters of 16 March and 3 October of 1905 between Baron Griecke, Netherlands Minister in London and the Marquess of Lansdowne, British Foreign Secretary, p. 659(70) Exchange of Letters of 22 September 1969, p. 679(128) Act No. 4 concerning Indonesian Waters of 18 February 1960, p. 679–680(130, 131), 683(137) Communication from the Netherlands Chargé d’affaires in Great Britain of 19 November 1910, 659(70) Letter from the Governor-General of the Dutch East Indies to the Minister for Colonies of 10 December 1922, p. 663(77) Memorandum of 8 August 1923, p. 663(77) Letter from the Minister of Foreign Affairs to the Minister of Colonies of 27 September 1926, p. 663(77)

200

Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

Sources of Law (cont.) Arbitral Award in the Palena Case, 38 International Law Reports (ILR), p. 79–80, p. 682(134) Capitulations of peace, protection and commerce, p. 634(15) Contract between the Netherlands and the Sultan of Banjermasin of 3 January 1817, p. 637(17) Contract between the Netherlands and the Sultan of Banjermasin of 4 May 1826, p. 637(17) Declaration of 27 September 1834, p. 637(17) Contracts of Vassalage between the Netherlands East Indies and the Sultans of three kingdoms of 12 November 1850, p. 638(18), 656(62), 657(64) Contract between the Netherlands East Indies and the Sultan of Bulungan, p. 638(18) Contracts of Vassalage of 2 June 1878, p. 638(18), 656(62), 657(64), 669(96), 673(105) 1893 Amendment to Contract of Vassalage of 1850 and 1878, p. 656(62), 657(63) Granting instruments made by the Sultan of Brunei of 1877, p. 639(20) Charter of 1881, p. 639(20)

Representation of Parties Indonesia Agent

H.E. Mr. Hassan Wirajuda, Minister for Foreign Affairs

Co-agent

H.E. Mr. Abdul Irsan, Ambassador of the Republic of Indonesia to the Netherlands

Counsel and advocates

Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the International Law Commission Mr. Alfred H.A. Soons, Professor of Public International Law, Utrecht University Sir Arthur Watts, K.C.M.G., Q.C., member of the English Bar, member of the Institute of International Law Mr. Rodman R. Bundy, avocat a la cour d’appel de Paris, member of the New York Bar, Frere Cholmeley / Eversheds, Paris Ms. Loretta Malintoppi, avocat à la cour d’appel de Paris, member of the Rome Bar, Frere Cholmeley / Eversheds, Paris



Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

201

Indonesia (cont.) Counsel

Mr. Charles Claypoole, Solicitor of the Supreme Court of England and Wales, Frere Cholmeley / Eversheds, Paris Mr. Mathias Forteau, Lecturer and Researcher at the University of Paris X-Nanterre, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre

Advisers

Mr. Hasyim Saleh, Deputy Chief of Mission, Embassy of the Republic of Indonesia, The Hague Mr. Rachmat Soedibyo, Director General for Oil & Natural Resources, Department of Energy & Mining Major General S.N. Suwisma, Territorial Assistance to Chief of Staff for General Affairs, Indonesian Armed Forces Headquarters Mr. DonniIo Anwar, Director for International Treaties for Politics, Security & Territorial Affairs, Department of Foreign Affairs Mr. Eddy Pratomo, Director for International Treaties for Economic, Social & Cultural Affairs, Department of Foreign Affairs Mr. Bey M. Rana, Director for Territorial Defence, Department of Defence Mr. Suwarno, Director for Boundary Affairs, Department of Interna1 Affairs Mr. Subiyanto, Director for Exploration & Exploitation, Department of Energy & Mining Mr. A.B. Lapian, Expert on Borneo History Mr. Kria Fahmi Pasaribu, Minister Counsellor, Embassy of the Republic of Indonesia, The Hague Mr. Moenir Ari Soenanda, Minister Counsellor, Embassy of the Republic of Indonesia, Paris Mr. Rachmat Budiman, Department of Foreign Affairs Mr. Abdul Havied Achmad, Head of District, East Kalimantan Province Mr. Adam Mulawarman T., Department of Foreign Affairs Mr. Ibnu Wahyutomo, Department of Foreign Affairs Capt. Wahyudi, Indonesian Armed Forces Headquarters

202

Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

Indonesia (cont.) Capt . Fanani Tedjakusuma, Indonesian Armed Forces Headquarters Croup Capt. Anef Budiman, Survey & Mapping, Indonesian Armed Forces Headquarters Mr. Abdulkadir Jaelani, Second Secretary, Embassy of the Republic of Indonesia, The Hague Mr. Daniel T. Simandjuntak, Third Secretary, Embassy of the Republic of Indonesia, The Hague Mr. Soleman B. Ponto, Military Attaché, Embassy of the Republic of Indonesia, The Hague Mr. Ishak Latuconsina, Member of the House of Representatives of the Republic of Indonesia Mr. Amris Hasan, Member of the House of Representatives of the Republic of lndonesia Technical Advisers

Mr. Martin Pratt, International Boundaries Research Unit, University of Durham Mr. Robert C. Rizzutti, Senior Mapping Specialist, International Mapping Associates Mr. Thomas Frogh, Cartographer, International Mapping Associates

Malaysia Agent

H.E. Mr. Tan Sri Abdul Kadir Mohamad, Ambassador-at-Large, Ministry of Foreign Affairs

Co-agent

H.E. Dato’ Noor Farida Ariffin, Ambassador of Malaysia to the Netherlands

Counsel and advocates

Sir Elihu Lauterpacht, Q.C., C.B.E., Honorary Professor of International Law, University of Cambridge, member of the Institute of International Law Mr. Jean-Pierre Cot, Emeritus Professor, University of Paris 1 (Panthéon-Sorbonne), Former Minister Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the English and Australian Bars, member of the Institute of International Law Mr. Nico Schrijver, Professor of International Law, Free University, Amsterdam, and Institute of Social Studies, The Hague; member of the Permanent Court of Arbitration



Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

203

Malaysia (cont.) Counsel

Mrs. Halima Hj. Nawab Khan, Senior Legal Officer, Sabah State Attorney-General’s Chambers Mr. Athmat Hassan, Legal Officer, Sabah State AttorneyGeneral’s Chambers Mrs. Farahana Rabidin, Federal Counsel, Attorney-General’s Chambers

Advisers

Datuk Nik Mohd. Zain Hj. Nik Yusof, Secretary General, Ministry of Land and Co-operative Development Datuk Jaafar Ismail, Director-General, National Security Division, Prime Minister’s Department H.E. Mr. Hussin Nayan, Ambassador, Under-Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs Mr. Ab. Rahim Hussin, Director, Maritime Security Policy, National Security Division, Prime Minister’s Department Mr. Raja Aznam Nazrin, Principal Assistant Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs Mr. Zulkifli Adnan, Counsellor of the Embassy of Malaysia in the Netherlands Ms. Haznah Md. Hashim, Assistant Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs Mr. Azfar Mohamad Mustafar, Assistant Secretary, Territorial and Maritime Affairs Division, Ministry of Foreign Affairs

Technical Advisers

Mr. Hasan Jamil, Director of Survey, Geodetic Survey Division, Department of Survey and Mapping Mr. Tan Ah Bah, Principal Assistant Director of Survey, Boundary Affairs, Department of Survey and Mapping Mr. Hasnan Hussin, Senior Technical Assistant, Boundary Affairs, Department of Survey and Mapping

Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)

General List No.: 103 Mean(s) and date of institution of the case: Application (28 December 1998) Statement of claim/question: Republic of Guinea To adjudge and declare: (a) that, in carrying out arbitrary arrests of its national, Mr. Ahmadou Sadio Diallo, and expelling him; in not at that time respecting his right to the benefit of the provisions of the 1963 Vienna Convention on Consular Relations; in submitting him to humiliating and degrading treatment; in depriving him of the exercise ofhis rights of ownership, oversight and management in respect of the companies which he founded in the DRC and in which he was the sole associé; in preventing him in that capacity from pursuing recovery of the numerous debts owed to the said companies both by the DRC itself and by other contractual partners; and in expropriating de facto Mr. Diallo’s property, the Democratic Republic of the Congo has committed internationally wrongful acts which engage its responsibility to the Republic of Guinea; (b) that the Democratic Republic of the Congo is accordingly bound to make full reparation on account of the injury suffered by Mr. Diallo or by the Republic of Guinea in the person of its national; (c) that such reparation shall take the form of compensation covering the totality of the injuries caused by the internationally wrongful acts of the Democratic Republic of the Congo, including loss of earnings, and shall also include interest. The Republic of Guinea further requests the Court kindly to authorize it to submit an assessment of the amount of the compensation due to it on this account from the Democratic Republic of the Congo in a subsequent phase of the proceedings in the event that the two Parties should be unable to agree on the amount thereof within a period of six months following delivery of the Judgment.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute

Ahmadou Sadio Diallo (Republic of Guinea v. DR Congo)



205

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

28 December 1998 to continues

Preliminary Objections

3 October 2002 to 24 May 2007

Merits

24 May 2007 to 30 November 2010 19, 26, 28 and 29 April 2010

27 November – 1 December 2006

Orders Date of Order and Authority 25 November 1999 Court – President Schwebel

Content Fixing of time-limits: 11 September 2000 – Memorial of the Republic of Guinea 11 September 2001 – Counter-Memorial of the Democratic Republic of the Congo

8 September 2000 Extension of time-limits: Court – President Guillaume From 11 September 2000 to 23 March 2001 – Memorial of the Republic of Guinea From 11 September 2001 to 4 October 2002 – CounterMemorial of the Democratic Republic of the Congo 7 November 2002 Fixing of time-limits: Court – President Guillaume 7 July 2003 – Written statement of observations and submission on the preliminary objections by Guinea 27 June 2007 Court – President Higgins

Fixing of time-limits: 27 March 2008 – Counter-Memorial of the DR Congo

5 May 2008 Court – President Higgins

Authorisation of submission of a Reply by the Republic of Guinea and Rejoinder by the DR Congo and fixing of time-limits: 19 November 2008 – Reply of the Republic of Guinea 5 June 2009 – Rejoinder of the DR Congo

Request for extension of time-limits State Party Republic of Guinea (1 time)

Remarks Request to extend filing of Memorial by nine months – Objection by the Democratic Republic of Congo regarding the extension requested, considers three months extension as an absolute extension provided that similar extension regarding filing of Counter-Memorial is also given to it

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Official citation: Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Preliminary Objections, I.C.J. Reports 2007, p. 582 Date of judgment: 24 May 2007 Authoritative text: French Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov; Judges ad hoc Mahiou, Mampuya; Registrar Couvreur. Headnotes: Facts underlying the case − Disputes between Africom-Zaire and Africontainers-Zaire, two sociétés privées à responsabilité limitée (SPRLs) incorporated under Zairean law, on the one hand, and the Zairean State and other business partners on the other − Arrest, detention and expulsion of Mr. Diallo, a Guinean citizen, associé and gérant of the companies, on the ground that his presence and conduct breached public order in Zaire − Disagreement between the Parties on the circumstances of Mr. Diallo’s arrest, detention and expulsion. Object of the Application − Diplomatic protection on behalf of Mr. Diallo for the violation of three categories of rights − Mr. Diallo’s individual personal rights − Mr. Diallo’s direct rights as associé in Africom-Zaire and AfricontainersZaire − Rights of the companies. Basis of the Court’s jurisdiction − Declarations made by the Parties under Article 36, paragraph 2, of the Statute. Preliminary objections raised by the DRC to the admissibility of the Application − Guinea’s standing − Non-exhaustion of local remedies − Examination by the Court in respect of each of the three different categories of rights alleged by Guinea to have been violated. Mr. Diallo’s individual personal rights. DRC’s contention that Guinea’s Application is inadmissible on the ground that local remedies have not been exhausted − Scope ratione materiae of diplomatic protection − Conditions of exercise − Mr. Diallo’s Guinean nationality − Burden of proof as regards localremedies − Guinea required to prove exhaustion by Mr. Diallo of local remedies available in the DRC or the existence of exceptional circumstances justifying the failure to exhaust them − DRC required to prove existence and non-exhaustion of available and effective local remedies − Examination by the Court confined to the question of local remedies in respect of Mr. Diallo’s expulsion − Expulsion characterized as “refusal of entry” (“refoulement”) when carried out − Refusals of entry not appealable under Congolese law − DRC cannot rely on error in



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designation − Request for reconsideration by the administrative authority having taken the decision not a local remedy to be exhausted − Objection based on failure to exhaust local remedies rejected. Protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire. DRC’s contention that Guinea’s Application is inadmissible for lack of standing, Mr. Diallo’s expulsion not having injured his direct rights as associé − Guinea’s contention that the effect of and motive for Mr. Diallo’s expulsion was to prevent him from exercising his direct rights as associé in AfricomZaire and Africontainers-Zaire and his rights as their gérant − Legal nature of the companies governed by Congolese law − Independent legal personality of SPRLs distinct from that of their associés − National State of associés entitled to exercise diplomatic protection in respect of infringements of their direct rights − Definition of rights appertaining to the status of associé and to the position of gérant of an SPRL under Congolese law and assessment of the effects on these rights of the actions taken against Mr. Diallo, being substantive matters − Objection based on Guinea’s lack of standing rejected. DRC’s contention that Guinea’s Application is inadmissible for failure to exhaust local remedies − Alleged violations of Mr. Diallo’s direct rights as associé described by Guinea as a direct consequence of his expulsion − Court having found that the DRC has not proved the existence under Congolese law of effective remedies against Mr. Diallo’s expulsion − DRC nothaving shown the existence of distinct remedies against the alleged violations of Mr. Diallo’s direct rights as associé − Objection as to inadmissibility based on failure to exhaust local remedies rejected. Diplomatic protection with respect to Mr. Diallo “by substitution” for AfricomZaire and Africontainers-Zaire. DRC’s contention that Guinea’s Application is inadmissible for lack of standing − Guinea’s argument that customary international law of diplomatic protection by a company by its State of nationality is subject to an exception allowing for diplomatic protection of shareholders by their national State “by substitution” for the company when the State whose responsibility is at issue is the national State of the company − Exception not, at present, established in customary international law − Question whether customary international law contains a more limited rule of protection “by substitution”, such as that proposed by the International Law Commission (ILC) in Article 11 (b) of its draft Articles on Diplomatic Protection − Does not arise for decision on present facts − Diplomatic protection of Africom-Zaire and Africontainers-Zaire governed by the normal rule of the nationality of the claims − Congolese nationality of the companies − Objection based on Guinea’s lack of standing upheld. DRC’s objection based on failure to exhaust local remedies without object. Application admissible in so far as it concerns protection of Mr. Diallo’s rights as an individual and his direct rights as associé in Africom-Zaire and Africontainers-Zaire.

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Text of the operative paragraph(s) (p. 617, para. 98) THE COURT, (1) As regards the preliminary objection to admissibility raised by the Democratic Republic of the Congo for lack of standing by the Republic of Guinea to exercise diplomatic protection in the present case: (a) unanimously, Rejects the objection in so far as it concerns protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire; (b) by fourteen votes to one, Upholds the objection in so far as it concerns protection of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire and Africontainers-Zaire; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov; Judge ad hoc Mampuya AGAINST: Judge ad hoc Mahiou (2) As regards the preliminary objection to admissibility raised by the Democratic Republic of the Congo on account of non-exhaustion by Mr. Diallo of local remedies: (a) unanimously, Rejects the objection in so far as it concerns protection of Mr. Diallo’s rights as an individual; (b) by fourteen votes to one, Rejects the objection in so far as it concerns protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov; Judge ad hoc Mahiou AGAINST: Judge ad hoc Mampuya (3) In consequence, (a) unanimously, Declares the Application of the Republic of Guinea to be admissible in so far as it concerns protection of Mr. Diallo’s rights as an individual; (b) by fourteen votes to one, Declares the Application of the Republic of Guinea to be admissible in so far as it concerns protection of Mr. Diallo’s direct rights as associé in AfricomZaire and Africontainers-Zaire;

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IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov; Judge ad hoc Mahiou AGAINST: Judge ad hoc Mampuya (c) by fourteen votes to one, Declares the Application of the Republic of Guinea to be inadmissible in so far as it concerns protection of Mr. Diallo in respect of alleged violations of rights of Africom-Zaire and Africontainers-Zaire. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Bennouna, Skotnikov; Judge ad hoc Mampuya AGAINST: Judge ad hoc Mahiou Declarations/Opinions Declaration

Judge ad hoc Mahiou

Separate Opinion

Judge ad hoc Mampuya

Sources of Law ICJ Statute

Art. 31(3), p. 586(4) Art. 36(2), p. 596(32) Art. 38(2), p. 611(79) Art. 40(2), p. 586(2) Art. 40(3), p. 586(3)

ICJ Rules of Court

Art. 53(2), p. 587(6) Art. 61(4), p. 587(8) Art. 62(1), p. 587(9) Art. 62, p. 593(22) Art. 79(1), p. 587(5) Art. 79(7), p. 617(97)

UN

1948 Universal Declaration of Human Rights of 10 December 1948, p. 595(29)

ICJ case-law

Current Order of 31 October 1995, p. 604(57) Order of 25 November 1999, p. 586(3) Order of 8 September 2000, p. 586(3) Previous Interhandel (Switzerland v. USA), [I.C.J. Reports 1959, p. 27], p. 599(45)

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Sources of Law (cont.) Elettronica Sicula S. p. A. (ELSI) (USA v. Italy), [I.C.J. Reports 1989, p. 43–44(530)], p. 600(44), 614(87) Barcelona Traction [Spain v. Belgium, I.C.J. Reports 1970, p. 36(46)], p. 603(53, 54), 605(60, 61), 606(63), 610(78), 612(82), 614(86, 87) Frontier Dispute (Burkina Faso/Mali) [I.C.J. Reports 1986, p. 567(280)], p. 611(79) Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 588(11), 600(45) 1966 International Covenant on Civil and Political Rights of 19 December 1966, p. 595(29) 1965 ICSID (Washington) Convention of 18 March 1965, p. 611(78), 613(83), 614(88) Special Agreement between US, UK and Portugal, p. 615(90) ICSID Convention, p. 611(78)

Inter(national) references

31 October 1995 Order of the Prime Minister of Zaire on expulsion against Mr. Diallo, p. 590(23) 6 March 1951 Decree establishing Zaire’s Trade Register, p. 594(24) 27 February 1887 Decree of the Independent State of Congo on Commercial Corporations, p. 594(25), 603(53), 604(55), 605(58), 605(62) 29 August 1995 and 15 November 1995 letters of Zaire Shell and Zaire Fina and Mobil Oil, p. 592(18) 7 June 1966 Legislative Order concerning the registered office and the administrative seat of companies of Zaire, p. 613(84) 20 December 2006 Letter of Zaire to the Registry of the Court, p. 593(22) 12 September 1983 Legislative Order of Zaire concerning immigration control, p. 598(37), 601(46) Articles on Diplomatic Protection of the International Law Commission, ILC Report, doc. A/61/10, p. 24, p. 599(39), 603(54), 606(63), 613(84), 615(91), 616(93) Decisions of the European Commission on Human Rights, p. 611(78) ICSID Jurisprudence, p. 611(78) Salvador Commercial Company case, p. 615(90) Biloune v. Ghana Investments Centre, p. 615(90)



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Representation of Parties Republic of Guinea Agent

Mr. Mohamed Camara, Chargé d’affaires a.i. at the Embassy of the Republic of Guinea, Brussels

Deputy Agent, Counsel & Advocate

Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, Member and former Chairman of the International Law Commission, Associate of the Institut de droit international

Counsel & Advocates Mr. Mathias Forteau, Professor at the University of Lille 2 Mr. Jean-Marc Thouvenin, Professor at the University of Paris X-Nanterre, member of the Paris Bar, Cabinet Sygna Partners Mr. Samuel Wordsworth, member of the English and Paris Bars, Essex Court Chambers Advisers

Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense Mr. Luke Vidal member of the Paris Bar, Cabinet Sygna Partners

Democratic Republic of Congo Head of Delegation

H.E. Mr. Pierre Ilunga M’Bundu wa Biloba, Minister of Justice and Keeper of the Seals, Democratic Republic of the Congo

Agent

H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and Plenipotentiary of the Democratic Republic of the Congo to the Kingdom of the Netherlands

Co-Agent, Counsel & Advocate

Mr. Tshibangu Kalala, Professor of International Law at the University of Kinshasa, member of the Kinshasa and Brussels Bars, and Deputy, Congolese Parliament

Counsel & Advocate

Mr. André Mazyambo Makengo Kisala, Professor of International Law, University of Kinshasa

Advisers

Mr. Yenyi Olungu, Principal Advocate-General of the Republic, Directeur de cabinet of the Minister of Justice and Keeper of the Seals Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice and Keeper of the Seals Mr. Nsingi-zi-Mayemba, Minister-Counsellor, Embassy of the Democratic Republic of the Congo in the Netherlands Mr. Bamana Kalonji Jerry, Second Counsellor, Embassy of the Democratic Republic of the Congo in the Netherlands Maître Kikangala Ngoie, member of the Brussels Bar

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Democratic Republic of Congo (cont.) Research Assistants

Maître Kadima Mukadi, member of the Kinshasa Bar, Cabinet Tshibangu et Associés Maître Lufulwabo Tshimpangila, member of the Brussels Bar Maître Tshibwabwa Mbuyi, member of the Brussels Bar

Assistant

Ms. Ngoya Tshibangu

Section C – Merits Citation: Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Judgment, I.C.J. Reports 2010 Date of judgment: 30 November 2010 Authoritative text: French Composition of the Court: President Owada; Vice-President Tomka; Judges AlKhasawneh, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cancado Trindade, Yusuf, Greenwood; Judges ad hoc Mahiou, Mampuya; Registrar Couvreur. Headnotes: General factual background. Protection of Mr. Diallo’s rights as an individual. Admissibility of the claim concerning the arrest and detention measures taken against Mr. Diallo in 1988–1989 – Point in the proceedings when this claim was asserted – Purpose of the written observations in response to the preliminary objections – Claim first presented in the Reply – Article 40, paragraph 1, of the Statute – Articles 38, paragraph 2, and 49, paragraph 1, of the Rules of Court – Subject of the dispute defined by the Application – Determination as to whether the additional claim is implicit in the Application – 1988–1989 and 1995–1996 arrests made in different contexts and on different legal bases – New claim depriving the Respondent of the fundamental procedural right to raise preliminary objections – distinctiveness, in this respect, of an action in diplomatic protection – Determination as to whether the additional claim arises directly out of the issue forming the subject-matter of the Application – Facts which are more or less comparable but dissimilar in nature – Facts known to the Applicant when the Application was filed and pre-dating those which the Application concerns – Additional claim inadmissible. Claim concerning the arrest, detention and expulsion measures taken against Mr. Diallo in 1995–1996 – Facts on which the Parties concur – Facts on which the Parties differ – Burden of proof – Principles – Type of facts and obligation in question – Evaluation by the Court of all the evidence produced by the Parties and subjected to adversarial scrutiny.



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Court’s assessment of the facts – First period of detention continuous – Second period of detention with a view to expulsion – Death threats not supported by any evidence. Alleged violation of Article 13 of the International Covenant on Civil and Political Rights and Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights – Requirement that expulsion must be “in accordance with the law” – Meaning – Court’s interpretation corroborated by the Human Rights Committee and the African Commission on Human and Peoples’ Rights – Interpretation of similar provisions by the European Court of Human Rights and the Inter-American Court of Human Rights consistent with the Court’s interpretation – Authority empowered under DRC law to sign the expulsion decree – Zairean Legislative Order of 12 September 1983 concerning immigration control – Constitutional Act of 9 April 1994 – Interpretation of domestic law by national authorities – Interpretation of domestic law by the Court when a State puts forward a manifestly incorrect reading – No prior opinion from the National Immigration Board – Absence of reasoning in the expulsion decree – Violation of Article 13 of the Covenant and Article 12, paragraph 4, of the African Charter – No Opportunity for Mr. Diallo to submit the reasons against his expulsion and to have his case reviewed by the competent authority – Absence of “compelling reasons of national security” – Violation of Article 13 of the Covenant. Alleged violation of Article 9, paragraphs 1 and 2, of the International Covenant on Civil and Political Rights and Article 6 of the African Charter on Human and Peoples’ Rights – Provisions applicable to any form of arrest or detention decided upon and carried out by a public authority, even outside the context of criminal proceedings – Insignificance in this respect of how the forcible removal from the territory is characterized under domestic law – Requirement that the arrested person must be “informed of any charges” against him applicable only in criminal proceedings – Mr. Diallo’s arrest and detention with a view to his expulsion – Violation of the requirements laid down in Article 15 of the Zairean Legislative Order of 12 September 1983 concerning immigration control – Arbitrariness of the arrest and detention given the number and seriousness of the irregularities tainting them – Violation of Article 9, paragraph 1, of the Covenant and Article 6 of the African Charter – No notice of the reasons for arrest – Violation of Article 9, paragraph 2, of the Covenant. Alleged violation of the prohibition on subjecting a detainee to mistreatment – Articles 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights; Article 5 of the African Charter on Human and Peoples’ Rights – Prohibition of inhuman and degrading treatment – Rule of general international law binding on States in all circumstances, even apart from any treaty commitments – Lack of evidence – Violation not established. Alleged violation of Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations – Provision applicable to any form of deprivation of liberty,

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even outside the criminal context – Obligation to inform the arrested person on the authorities’ own initiative and “without delay” of his right to seek assistance from the consular authorities of his country – Fact that the arrested person did not request such assistance and that the consular authorities learned of the arrest through other channels – No evidence to prove oral notice – Violation established. Alleged violation of the right to property guaranteed by Article 14 of the African Charter on Human and Peoples’ Rights – Question falling within the scope of the assessment of the damage Mr. Diallo suffered. Protection of Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire. Congolese law of commercial companies – Société privée à responsabilité limitée – Concept – Legal existence of the two companies under domestic law – Mr. Diallo’s role and participation in the companies as gérant and associé – Distinction between alleged infringements of the companies’ rights and those concerning the associé’s direct rights – Arguments put forward by Guinea. Right to take part and vote in general meetings of the companies – Article 79 of the Congolese Decree of 27 February 1887 on commercial companies – Direct right of the associés – No general meetings convened – Impact on the right to take part and vote – Alleged obligation to hold general meetings on DRC territory and convening of meetings from abroad – Alleged right to attend general meetings in person – Proxy representation of the associé at general meetings pursuant to Articles 80 and 81 of the Decree of 27 February 1887 – Purpose of these provisions – Control exercised by Mr. Diallo over the companies – Appointment of a proxy under Article 22 of Africontainers-Zaire’s Articles of Incorporation – Distinction between impeding the exercise of a right and violating that right – No violation of the right to take part andvote in general meetings. Rights relating to the gérance – Articles 64, 65 and 69 of the Decree of 27 February 1887; Articles 14 and 17 of Africontainers-Zaire’s Articles of Incorporation – Alleged violation of the right to appoint a gérant – Responsibility of the company, not a right of the associé – Alleged violation of the right to be appointed gérant – No violation, Mr. Diallo having remained gérant – Alleged violation of the right to exercise the functions of gérant – Possible to entrust dayto-day management to agents or proxies under Congolese law and the Articles of Incorporation – No violation – Alleged violation of the right not to be removed as gérant – Conditions on removal under Article 67 of the Decree of 27 February 1887 – Removal not proved – No violation. Right to oversee and monitor the management – Articles 71 and 75 of the Decree of 27 February 1887; Article 19 of Africontainers-Zaire’s Articles of Incorporation – No violation. Right to property of Mr. Diallo over his parts sociales in Africom-Zaire and Africontainers-Zaire – Legal personality of the company distinct from that of



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its shareholders – Property of the company not merged with that of an associé, even a sole associé – Capital being part of the company’s property – Parts sociales, representing but distinct from the capital, owned by the associés – Right of associés to receive dividends or any monies payable on the winding-up of a company – No evidence of any dividend declaration or of the winding-up of the companies – No need to determine the extent of the companies’ business activities – No need to establish whether, as alleged, the companies had been in “undeclared bankruptcy” – Claim of indirect expropriation not established. Reparation – Judicial finding of the violations not sufficient – Compensation – Six-month period to reach agreement on the amount of compensation to be paid by the DRC to Guinea for the injury flowing from the wrongful detentions and expulsion of Mr. Diallo in 1995–1996, including the resulting loss of his personal belongings. Text of the operative paragraph(s) (para. 165) THE COURT, (1) By eight votes to six, Finds that the claim of the Republic of Guinea concerning the arrest and detention of Mr. Diallo in 1988–1989 is inadmissible; IN FAVOUR: President Owada; Vice-President Tomka; Judges Abraham, Keith, Sepúlveda-Amor, Skotnikov, Greenwood; Judge ad hoc Mampuya; AGAINST: Judges Al-Khasawneh, Simma, Bennouna, Cançado Trindade, Yusuf; Judge ad hoc Mahiou (2) Unanimously, Finds that, in respect of the circumstances in which Mr. Diallo was expelled from Congolese territory on 31 January 1996, the Democratic Republic of the Congo violated Article 13 of the International Covenant on Civil and Political Rights and Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights; (3) Unanimously, Finds that, in respect of the circumstances in which Mr. Diallo was arrested and detained in 1995–1996 with a view to his expulsion, the Democratic Republic of the Congo violated Article 9, paragraphs 1 and 2, of the International Covenant on Civil and Political Rights and Article 6 of the African Charter on Human and Peoples’ Rights;

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(4) By thirteen votes to one, Finds that, by not informing Mr. Diallo without delay, upon his detention in 1995–1996, of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Democratic Republic of the Congo violated the obligations incumbent upon it under that subparagraph; IN FAVOUR: President Owada; Vice-President Tomka; Judges Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Mahiou; AGAINST: Judge ad hoc Mampuya (5) By twelve votes to two, Rejects all other submissions by the Republic of Guinea relating to the circumstances in which Mr. Diallo was arrested and detained in 1995–1996 with a view to his expulsion; IN FAVOUR: President Owada; Vice-President Tomka; Judges Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood; Judge ad hoc Mampuya AGAINST: Judge Cançado Trindade; Judge ad hoc Mahiou (6) By nine votes to five, Finds that the Democratic Republic of the Congo has not violated Mr. Diallo’s direct rights as associé in Africom-Zaire and Africontainers-Zaire; IN FAVOUR: President Owada; Vice-President Tomka; Judges Simma, Abraham, Keith, Sepúlveda-Amor, Skotnikov, Greenwood; Judge ad hoc Mampuya AGAINST: Judges Al-Khasawneh, Bennouna, Cançado Trindade, Yusuf; Judge ad hoc Mahiou (7) Unanimously, Finds that the Democratic Republic of the Congo is under obligation to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of international obligations referred to in subparagraphs (2) and (3) above; (8) Unanimously, Decides that, failing agreement between the Parties on this matter within six months from the date of this Judgment, the question of compensation due to the Republic of Guinea shall be settled by the Court and reserves for this purpose the subsequent procedure in the case.



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Declarations/Opinions Joint Declaration

Judges Al-Khasawneh, Simma, Bennouna, Cancado Trindade and Yusuf

Joint Dissenting Opinion

Judges Al-Khasawneh and Yusuf

Joint Declaration

Judges Keith and Greenwood

Separate Opinion

Judge CanÇado Trindade

Dissenting Opinion

Judge ad hoc Mahiou

Separate Opinion

Judge ad hoc Mampuya

Sources of Law ICJ Statute

Art. 31(3), p. 7(4) Art. 36(2), p. 7(1) Art. 40(1), p. 17(36, 37) Art. 40(2), p. 7(2)

ICJ Rules of Court

Art. 38(2), p. 17(36, 37) Art. 49(1), p. 15(29), 17(36, 37) Art. 53(2), p. 8(9) Art. 61(4), p. 8(11) Art. 79(1) (1978 Rules), p. 7(5) Art. 79(3), p. 7(5), 16(31) Art. 79(5), p. 16(31)

PCIJ case-law

Prince von Pless Administration (Order of 4 February 1933, [P.C.I.J., Series A/B, No. 52, p. 14], p. 18(39) Serbian Loans, Judgment No. 14, 1929, [P.C.I.J., Series A, No. 20, p. 460)], p. 25(70) Brazilian Loans, Judgment No. 15, 1929, [P.C.I.J., Series A, No. 21, p. 124)], p. 25(70) Factory at Chorzów, Merits, Judgment No. 13, 1928, [P.C.I.J., Series A, No. 17, p. 47], p. 48(161)

ICJ case-law

Current Order of 25 November 1999, p. 7(3) Order of 8 September 2000, p. 7(3) Judgment of 24 May 2007, p. 7(6), 13(15, 20), 16(33), 17(34, 35), 33(100), 34(103, 104), 35(105), 37(114), 38(115), 42(134), 43(139) Order of 27 June 2007, p. 8(7) Order of 5 May 2008, p. 8(8)

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Sources of Law (cont.) Previous Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, [ Judgment, I.C.J. Reports 1970, p. 33–34 (38)], p. 34(104), 35(105), 39(119), 47(156), 48(158) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, [I.C.J. Reports 1992, p. 267(69)], p. 18(38, 39, 40, 41) Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Judgment, [I.C.J. Reports 2007(II), p. 695(108)], p. 18(39, 40, 41) Temple of Preah Vihear, Merits, Judgment, [I.C.J. Reports 1962, p. 36], p. 19(41) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, [I.C.J. Reports 1998, p. 26(47)], p. 19(44) Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, of 20 April 2010, [I.C.J. Reports 2010, para 162], p. 21(54), 48(161) Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, [I.C.J. Reports 2008, p. 231(152)], p. 26(72) Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, [I.C.J. Reports 2004 (I), p. 46(76)], p. 32(95) Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 9(14), 23(62), 31(90), 32(97), 48(160) 1966 International Covenant on Civil and Political Rights of 16 December 1966, p. 23(63), 24(66), 26(72), 27(74), 28(76, 77), 29(80, 81, 82, 83), 30(85, 87), 31(88, 89), 48(160) 1981 African Charter of Human Rights of 27 June 1981, p. 23(63), 25(68, 69), 26(72), 27(74), 28(76, 77), 29(80, 81, 82), 30(85, 87), 31(88), 32(98), 48(160) Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, p. 25(68) American Convention on Human Rights, p. 25(68)



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Sources of Law (cont.) Inter(national) references

Maroufidou v. Sweden, No. 58/1979, para. 9.3; Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant) p. 24(66) Kenneth Good v. Republic of Botswana, No. 313/05, para. 204, p. 25(67) World Organization against Torture and International Association of Democratic Lawyers, International Commission of Jurists, Interafrican Union for Human Rights v. Rwanda, No. 27/89, 46/91, 49/91, 99/93, p. 25(67) Constitutional Act of 9 April 1994 of DR Congo, p. 25(70), 26(72) DR Constitution, p. 25(70, 71) 1983 Legislative Order of DR Congo of 12 September 1983, p. 26(72), 28(79) 1995 Expulsion Decree of 31 October 1995, p. 27(74) Human Rights Committee, CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Person), p. 28(77) Decree of the Independent State of Congo of 27 February 1887, p. 33(99), 34(103), 35(107), 36(109), 27(112, 113), 38(117, 119), 39(120, 121, 123), 40(125, 128), 41(129, 130), 42(133), 43(135, 138, 139), 44(141, 142, 143, 144) Decision of the Cour d’Appel of Kinshasa/Gombe of 20 June 2002, p. 37(111) Articles of Incorporation of the SPRL, p. 38(117) 1966 Legislative Order No. 66–341 of 7 June 1966, p. 39(121) Articles of Incorporation of Africontainers-Zaire, p. 39(123), 40(124, 125), 41(131), 42(132), 44(141, 142), 45(145)

Representation of Parties Republic of Guinea Head of Delegation

Colonel Siba Lohalamou, Minister of Justice, Keeper of the Seals

Agent

Ms. Djénabou Saïfon Diallo, Minister of Co-operation Mr. Mohamed Camara, First Counsellor for Political Affairs, Embassy of Guinea in the Benelux countries and in the European Union,

Deputy Agent, Counsel & Advocate

Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, Member and former Chairman of the International Law Commission, Associate of the Institut de droit international

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Republic of Guinea (cont.) Counsel & Advocates Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre-La Défense, Secretary-General of the Société française pour le droit international Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense Mr. Jean-Marc Thouvenin, Professor at the University of Paris Ouest, Nanterre-La Défense, Director of the Centre de droit international de Nanterre (CEDIN), member of the Paris Bar, Cabinet Sygna Partners Mr. Luke Vidal, member of the Paris Bar, Cabinet Sygna Partners Mr. Samuel Wordsworth, member of the English and Paris Bars, Essex Court Chambers Advisers

H.E. Mr. Ahmed Tidiane Sakho, Ambassador of the Republic of Guinea to the Benelux countries and to the European Union Mr. Alfred Mathos, Judicial Agent of the State Mr. Hassan II Diallo, Legal Adviser to the Prime Minister of the Republic of Guinea Mr. Ousmane Diao Balde, Director of the Legal and Consular Division of the Ministry of Foreign Affairs Mr. André Saféla Leno, President of the Indictments Division of the Court of Appeal of Conakry H.E. Mr. Abdoulaye Sylla, former Ambassador Mr. Ahmadou Sadio Diallo

Democratic Republic of Congo Agent & Head of Delegation

H.E. Mr. Henri Mova Sakanyi, Ambassador of the Democratic Republic of the Congo to the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg

Co-Agent, Counsel & Advocate

Mr. Tshibangu Kalala, Professor of International Law at the University of Kinshasa, member of the Kinshasa and Brussels Bars, and Deputy, Congolese Parliament

Advisers

Mr. Lwamba Katansi, Professor at the University of Kinshasa, Legal Adviser, Office of the Minister of Justice and Human Rights



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Democratic Republic of Congo (cont.) Ms. Corinne Clavé, member of the Brussels Bar, Cabinet Liedekerke-Wolters-Waelbroeck-Kirkpatrick Mr. Kadima Mukadi, member of the Kinshasa Bar, Cabinet Tshibangu & Associés Mr. Bukasa Kabeya, member of the Kinshasa Bar, Cabinet Tshibangu & Associés Mr. Kikangala Ngoie, member of the Brussels Bar Mr. Moma Kazimbwa Kalumba, member of the Brussels Bar, Lawyer-Counsel, Embassy of the Democratic Republic of the Congo in Brussels Mr. Tshimpangila Lufuluabo, member of the Brussels Bar Ms. Mwenze Kisonga Pierrette, Head of the Legal and Litigation Department, Embassy of the Democratic Republic of the Congo in Brussels Mr. Kalume Mabingo, Legal Adviser, Embassy of the Democratic Republic of the Congo in Brussels Assistants

Mr. Mukendi Tshibangu, Researcher, Cabinet Tshibangu & Associés Ms. Ali Feza, Researcher, Office of the Minister of Justice and Human Rights Mr. Makaya Kiela, Researcher, Office of the Minister of Justice and Human Rights

LaGrand Case (Germany v. United States of America) General List No.: 104 Mean(s) and date of institution of the case: Application (2 March 1999) Statement of claim/question: Germany asks the Court to adjudge and declare: “(1) that the United States, in arresting, detaining, trying, convicting and sentencing Karl and Walter LaGrand, as described in the preceding statement of facts, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, as provided by Articles 5 and 36 of the Vienna Convention, (2) that Germany is therefore entitled to reparation, (3) that the United States is under an international legal obligation not to apply the doctrine of “procedural default” or any other doctrine of national law, so as to preclude the exercise of the rights accorded under Article 36 of the Vienna Convention; and (4) that the United States is under an international obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against any other German national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or subordinate position in the organization of the United States, and whether that power’s functions are of an international or internal character; and that, pursuant to the foregoing international legal obligations, (1) the criminal liability imposed on Karl and Walter LaGrand in violation of international legal obligations is void, and should be recognized as void by the legal authorities of the United States; (2) the United States should provide reparation, in the form of compensation and satisfaction. for the execution of Karl LaGrand on 24 February 1999:

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(3) the United States should restore the status quo ante in the case of Walter LaGrand, that is re-establish the situation that existed before the detention of, proceedings against, and conviction and sentencing of that German national in violation of the United States’ international legal obligation took place; and (4) the United States should provide Germany a guarantee of the nonrepetition of the illegal acts.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute and Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

2 March 1999 to 27 June 2001

Provisional Measures

2 to 3 March 1999

None

Merits

3 March 1999 to 27 June 2001

13 to 17 November 2000

Orders Date of Order and Authority

Content

3 March 1999

Please refer Section B

5 March 1999 Court – Vice-President (Acting President) Weeramantry

Fixing of time-limits: 16 September 1999 – Memorial of Germany 27 March 2000 – Counter-Memorial of the USA

Section B – Provisional Measures Official citation: LaGrand (German v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 9 Date of order: 3 March 1999 Authoritative text: English

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Composition of the Court: Present: Vice-President Weeramantry, (Acting President); President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Registrar Valencia-Ospina. Text of the operative paragraph(s) (p. 16, para. 29) THE COURT Unanimously, I. Indicates the following provisional measures: (a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order; (b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona. II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order. Declarations/Opinions Declaration

Judge Oda

Separate Opinion

President Schwebel

Sources of Law ICJ Statute

Art. 36(1), p. 10(1) Art. 40(2), p. 12(10) Art. 41, p. 9, 11(6), 14–15(22), 15(26) Art. 48, p. 9

ICJ Rules of Court

Art. 13, p. 13(11) Art. 32, p. 13(11) Art. 38(4), p. 12(10) Art. 73, p. 9, 11(6), 14(19) Art. 73(2), p. 12(10) Art. 74, p. 9, 11(6) Art. 74(4), p. 13(11) Art. 75, p. 9, 11(6), 13(12) Art. 75(1), p. 14(21), 15(26)

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Sources of Law (cont.) ICJ case-law

Nuclear Tests case (Australia v. France), [I.C.J. Reports 1973, p. 103], p. 15(23) United States Diplomatic and Consular Staff in Tehran, [I.C.J. Reports 1979, p. 19(36)], p. 15(23) Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia), [I.C.J. Reports 1993, p. 19(34)], p. 15(23) Vienna Convention on Consular Relations (Paraguay v. USA), [I.C.J. Reports 1998, p. 257(36)], p. 15(23)

Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 9, 10(1, 2), 10–11(5), 11(7), 14(15, 16, 17) 1963 Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations, p. 10(1), 13(14), 14(15, 16, 17, 18) 1966 International Covenant on Civil and Political Rights, p. 12(8)

Representation of Parties Germany Agents

Mr. Gerhard Westdickenberg, Director General for Legal Affairs and Legal Adviser, Federal Foreign Office of the Federal Republic of Germany H.E. Mr. Eberhard U.B. von Puttkamer, Ambassador of the Federal Republic of Germany to the Kingdom of the Netherlands

Co-agent & Counsel

Mr. Bruno Simma, Professor of Public International Law at the University of Munich

Counsel

Mr. Pierre-Marie Dupuy, Professor of Public International Law at the University of Paris (Panthéon-Assas) and at the European University Institute in Florence Mr. Donald Francis Donovan, Debevoise & Plimpton, New York Mr. Hans-Peter Kaul, Head of the Public International Law Division, Federal Foreign Office of the Federal Republic of Germany Mr. Daniel Khan, University of Munich Mr. Andreas Paulus, University of Munich

Advisers

Mr. Eberhard Desch, Federal Ministry of Justice of the Federal Republic of Germany,

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Germany (cont.) Mr. S. Johannes Trommer, Embassy of the Federal Republic of Germany in the Netherlands, Mr. Andreas Götze, Federal Foreign Office of the Federal Republic of Germany Assistant

Ms. Fiona Sneddon

USA Agent

Mr. James H. Thessin, Acting Legal Adviser, United States Department of State

Deputy agents

Ms. Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Department of State Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States Department of State

Counsel & Advocates The Honourable Janet Napolitano, Attorney General, State of Arizona Mr. Michael J. Matheson, Professor of International Law, School of Advanced International Studies, Johns Hopkins University; former Acting Legal Adviser, United States Department of State Mr. Theodor Meron, Counsellor on International Law, United States Department of State; Charles L. Denison Professor of International Law, New York University; Associate Member of the Institute of International Law Mr. Stefan Trechsel, Professor of Criminal Law and Procedure, University of Zurich Faculty of Law Counsel

Mr. Shabtai Rosenne, Member of the Israel Bar; Honorary Member of the American Society of International Law; Member of the Institute of International Law Ms. Norma B. Martens, Assistant Attorney General, State of Arizona Mr. Paul J. McMurdie, Assistant Attorney General, State of Arizona Mr. Robert J. Erickson, Principal Deputy Chief, Appellate Section, Criminal Division, United States Department of Justice Mr. Allen S. Weiner, Counsellor for Legal Affairs, Embassy of the United States of America in the Netherlands Ms. Jessica R. Holmes, Attaché, Office of the Counsellor for Legal Affairs, Embassy of the United States of America in the Netherlands



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Section C – Merits Official citation: LaGrand (German v. United States of America), Judgment, I.C.J. Reports 2001, p. 466 Date of judgment: 27 June 2001 Authoritative text: English Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, ParraAranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Registrar Couvreur. Headnotes: Facts of the case. Jurisdiction of the Court – Article I of Optional Protocol concerning Compulsory Settlement of Disputes to Vienna Convention on Consular Relations of 24 April 1963. Jurisdiction of Court in respect of Germany’s first submission – Recognition by United States of existence of dispute arising out of breach of subparagraph (b) of Article 36, paragraph 1, of Vienna Convention on Consular Relations – Recognition by United States of Court’s jurisdiction to hear this dispute in so far as concerns Germany’s own rights – Objection by United States to Court’s jurisdiction over Germany’s claim founded on diplomatic protection – Objection by United States to Court’s jurisdiction over alleged breach of subparagraphs (a) und (c) of Article 36, paragraph 1, of Convention. Jurisdiction of Court in respect of Germany’s third submission concerning implementation of Order of 3 March 1999 indicating provisional measures. Jurisdiction of Court in respect of Germany’s fourth submission – Objection by United States – United States argument that submission seeking guarantees of non-repetition falls outside terms of Optional Protocol. Admissibility of Germany’s submissions. United States objection to admissibility of Germany’s second, third and fourth submissions – United States argument that Court cannot be turned into ultimate court of appeal in criminal proceedings before its own domestic courts. United States objection to admissibility of Germany’s third submission – United States challenging manner of Germany’s institution of present proceedings before the Court. United States objection to admissibility of Germany’s first submission – Allegation of failure to exhaust local remedies. United States objection to Germany’s submissions – Allegation that Germany seeking to apply standard to United States different from own practice.

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Germany’s first submission – Question of disregard by United States of its legal obligations to Germany under Articles 5 and 36 paragraph 1, of Convention. Submission advanced by Germany in own right – Recognition by United States of breach of Article 36, paragraph 1 (b), of Convention – Article 36, paragraph 1, establishing interrelated régime designed to facilitate implementation of system of consular protection. Submission by Germany based on diplomatic protection – Article 36, paragraph 1 (b), of Convention and obligations of receiving State to detained person and to sending State. Germany’s second submission – Question of disregard by United States of its legal obligation under Article 36, paragraph 2, of Convention. Argument of United States that Article 36, paragraph 2, applicable only to rights of sending State. “Procedural default” rule – Distinction to be drawn between rule as such and application in present case. Germany’s third submission – Question of disregard by United States of its legal obligation to comply with Order indicating provisional measures of 3 March 1999. Court called upon to rule expressly in question of legal effects of orders under Article 41 of Statue – Interpretation of that provision – Comparison of French and English texts – French and English versions of Statute “equally authentic” by virtue of Article 111 of United Nations Charter – Article 33, paragraph 4, of Vienna Convention on Law of Treaties – Object and purpose of Statute – Context – Principle that party to legal proceedings must abstain from any measure which might aggravate or extend the dispute – Preparatory work of Article 41 – Article 94 of United Nations Charter. Question of binding nature of Order of 3 March 1999 – Measures taken by United States to give effect to Order – No request for reparation in Germany’s third submission – Time pressure due to circumstances in which proceedings were instituted. Germany’s fourth submission – Question of obligation to provide certain assurances of non-repetition. General request for assurance of non-repetition – Measures taken by United States to prevent recurrence of violation of Article 36, paragraph 1 (b) – Commitment undertaken by United States to ensure implementation of specific measures adopted in performance of obligations under that provision. Consideration of other assurances requested by Germany – Germany’s characterization of individual right provided for in Article 36, paragraph 1, as human right – Court’s power to determine existence of violation of international obligation and, if necessary, to hold that domestic law has caused violation – United States having apologized to Germany for breach of Article 36, paragraph 1, of



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Convention – Germany not having requested material reparation for injury to itself and to LaGrand brothers – Question of review and reconsideration of certain sentences. Text of the operative paragraph(s) (p. 514, para. 128) THE COURT (1) By fourteen votes to one, Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Federal Republic of Germany on 2 March 1999; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal AGAINST: Judge Parra-Aranguren (2) (a) By thirteen votes to two, Finds that the first submission of the Federal Republic of Germany is admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judges Oda, Parra-Aranguren (b) By fourteen votes to one, Finds that the second submission of the Federal Republic is admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judge Oda (c) By twelve votes to three, Finds that the third submission of the Federal Republic of Germany is admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh AGAINST: Judges Oda, Parra-Aranguren, Buergenthal

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(d) By fourteen votes to one, Finds that the fourth submission of the Federal Republic of Germany is admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judge Oda (6) By fourteen votes to one, Finds that, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1(b), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America breached its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1; IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judge Oda (4) By fourteen votes to one, Finds that, by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers after the violations referred to in paragraph (3) above had been established, the United States of America breached its obligation to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 2, of the Convention; IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judge Oda (5) By thirteen votes to two, Finds that, by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the final decision of the International Court of Justice in the case, the United States of America breached its obligation incumbent upon it under the Order indicating provisional measures issued by the Court on 3 March 1999;

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IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judges Oda, Parra-Aranguren (6) Unanimously, Takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligation under Article 36, paragraph 1(b), of the Convention; and finds that this commitment must be regarded as meeting the Federal Republic of Germany’s request for a general assurance of non-repetition; (7) By fourteen votes to one, Finds that should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1(b), of the Convention, having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. IN FAVOUR: President Guillaume; Vice-President Shi; Judges, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren Kooijmans, Rezek, Al-Khasawneh, Buergenthal Against: Judge Oda Declarations/Opinions Declaration

President Guillaume

Separate Opinion

Vice-President Shi

Dissenting Opinion

Judge Oda

Separate Opinion

Judges Koroma and Parra-Aranguren

Dissenting Opinion

Judge Buergenthal

Sources of Law UN Charter

Art. 92, p. 502(101) Art. 94, p. 500(96), 505(108) Article 94(1), p. 498(93) Art. 111, p. 502(101),

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232 Sources of Law (cont.) ICJ Statute

Art. 36(1), p. 470(1), 482(40) Art. 36(2), p. 482(40) Art. 40(2), p. 470(2) Art. 41, p. 470(3), 479(32), 485–86(52), 501(98, 99, 100), 502(102), 503(103, 104), 505(107, 108), 506(109, 110) Art. 41(1), p. 483(44), 498(93), 500(96) Art. 56–60, p. 505–6 (108) Art. 59, p. 498(93), 502(102), Art. 60, p. 498(93) Art. 63(1), p. 470(4),

ICJ Rules of Court

Art. 13, p. 470(3), Art. 32, p. 470(3), Art. 43, p. 470(4), Art. 53(2), p. 471(7), Art. 56, p. 470(6), Art. 56(2), p. 470–71(6), Art. 61(4), p. 471(9), Art. 73, p. 470(3), Art. 74, p. 470(3), Art. 75, p. 470(3), Art. 75(1), p. 479(32) Art. 79, p. 480(36)

UN

UN General Assembly Resolution 40/144 of 13 December 1985 – UN Declaration on the human rights of individuals who are not nationals of the country in which they live, p. 492–93(75),

PCIJ case-law

Chorzów Factory, [Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 22], p. 485(48) Acquisition of Polish Nationality, Advisory Opinion, 1923, [P.C.I.J., Series B, No. 7, p. 20], p. 494(77), Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, [P.C.I.J. Series A/B No. 79, p. 199], p. 503(103)

ICJ case-law

Current LaGrand (German v. United States of America), Provisional Measures, Order of 3 March 1999, [I.C.J. Reports 1999, p. 9], p. 473–74(12), 478–79(30, 32, 33), 483(43), 486–87(55), 487(57), 498(92, 93), 499 (94, 95), 500(96), 501(97, 98), 506(110, 111), 507–508(113), 508(114, 115, 116) Previous Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), [I.C.J. Reports 1973, p. 203(72)], p. 483–84(45)

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Sources of Law (cont.) Competence of the General Assembly for the Admission of a State to the United Nations, [Advisory Opinion: I.C.J. Reports 1950, p. 8], p. 494(77) Arbitral Award of 31 July 1989, [I.C.J. Reports 1991, p. 69–70(48)], p. 494(77) Vienna Convention on Consular Relations (Paraguay v. USA), [I.C.J. Reports 1998, p. 256(31)], p. 484(47) Territorial Disputes (Libyan Arab Jamahiriya/Chad), [Judgment, I.C.J. Reports 1994, p. 25(51)], p. 494(77) Nuclear Tests (Australia v. France), [Interim Protection Order of 22 June 1973, I.C.J. Reports 1973], p. 106], p. 503 (103), Nuclear Tests (New Zealand v. France), [Interim Protection Order of 22 June 1973, I.C.J. Reports 1973, p. 142], p. 503 (103), Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, [I.C.J. Reports 1986, p. 9(18)] p. 503(103) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 23], p. 503(103) Order of 13 September 1993, [I.C.J. Reports 1993, 349(57), p. 503(103) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996 [I.C.J. Reports 1996 (I), p. 22–23 (41), p. 24(49(1)], p. 503(103) Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 470(1, 4), 471 (10), 472 (11), 473(12), 475(15), 476(16, 17, 21), 477(23), 480(36, 37), 481(38, 39), 482(40, 41, 42), 483(44), 484(47), 485(51, 52), 487(58), 488(60), 488–89(63), 489(65), 490(66, 67, 68, 69, 70), 491(71, 73), 492(74, 75), 493(76), 494 (77, 78), 495(79, 80), 496 (83, 84, 85, 86), 497 (87, 88, 89, 90, 91), 508–9(117), 509(118), 509–10(119), 510–11(120), 511(121), 512(122, 123), 512–13(124), 513(125), 514(126, 127) 1969 Vienna Convention on Law of Treaties, p. 501(99), 502(101) 1963 Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations, p. 470(1,4), 475(15), 480(36), 481–82(39), 482(40, 41, 42), 484(47) 1914 Bryan Treaty of 13 October 1914, p. 504(105)

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234 Sources of Law (cont.) Inter(national) references

Orders of Districts of Arizona of 24 January 1995 and 16 February 1995, p. 477(23) US Supreme Court judgment of 2 November 1998, p. 477–478(23), US Supreme Court of Arizona judgment of 15 January 1999, p. 478(25) Written correspondence of German Foreign Minister to US Secretary of State of 27 January 1999, p. 478(25) Written correspondence of German Foreign Minister to US Secretary of State of 22 February 1999, p. 478(25), 486(53), Written correspondence of German Foreign Minister to Governor of Arizona of 27 January 1999, p. 478(25) Written correspondence of German Justice Minister to US Secretary of Justice of 27 January 1999, p. 478(25) Written correspondence of German Chancellor to US President of 2 February 1999, p. 478(25) Written correspondence of German Chancellor to Governor of Arizona of 2 February 1999, p. 478(25) Written correspondence of German President to US President of 5 February 1999, p. 478(25) German Code of Civil Procedure, p. 488(62), Letter from the Legal Counsellor of the US Embassy in the Hague dated 8 March 1999, p. 499–500(95), 506–7(111) Advisory Committee of Jurists, Procés-verbaux of the Proceedings of the Committee, 16 June–24 July 1920, The Hague, 1920, p. 609, p. 504(105) Breard v. Greene, United States Supreme Court, 14 April 1998, International Legal Materials, vol. 37 (1998), p. 824, p. 507(112) January 1998 Publication: Consular Notification and Access: Instructions for Federal, State and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, p. 511(121)

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Representation of Parties Germany Agents

Mr. Gerhard Westdickenberg, Director General for Legal Affairs and Legal Adviser, Federal Foreign Office of the Federal Republic of Germany H.E. Mr. Eberhard U.B. von Puttkamer, Ambassador of the Federal Republic of Germany to the Kingdom of the Netherlands

Co-agent & Counsel

Mr. Bruno Simma, Professor of Public International Law at the University of Munich

Counsel

Mr. Pierre-Marie Dupuy, Professor of Public International Law at the University of Paris (Panthéon-Assas) and at the European University Institute in Florence Mr. Donald Francis Donovan, Debevoise & Plimpton, New York Mr. Hans-Peter Kaul, Head of the Public International Law Division, Federal Foreign Office of the Federal Republic of Germany Mr. Daniel Khan, University of Munich Mr. Andreas Paulus, University of Munich

Advisers

Mr. Eberhard Desch, Federal Ministry of Justice of the Federal Republic of Germany, Mr. S. Johannes Trommer, Embassy of the Federal Republic of Germany in the Netherlands, Mr. Andreas Götze, Federal Foreign Office of the Federal Republic of Germany

Assistant

Ms. Fiona Sneddon

USA Agent

Mr. James H. Thessin, Acting Legal Adviser, United States Department of State

Deputy agents

Ms. Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Department of State Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States Department of State

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USA (cont.) Counsel &Advocates

The Honourable Janet Napolitano, Attorney General, State of Arizona Mr. Michael J. Matheson, Professor of International Law, School of Advanced International Studies, Johns Hopkins University; former Acting Legal Adviser, United States Department of State Mr. Theodor Meron, Counsellor on International Law, United States Department of State; Charles L. Denison Professor of International Law, New York University; Associate Member of the Institute of International Law Mr. Stefan Trechsel, Professor of Criminal Law and Procedure, University of Zurich Faculty of Law

Counsel

Mr. Shabtai Rosenne, Member of the Israel Bar; Honorary Member of the American Society of International Law; Member of the Institute of International Law Ms. Norma B. Martens, Assistant Attorney General, State of Arizona Mr. Paul J. McMurdie, Assistant Attorney General, State of Arizona Mr. Robert J. Erickson, Principal Deputy Chief, Appellate Section, Criminal Division, United States Department of Justice Mr. Allen S. Weiner, Counsellor for Legal Affairs, Embassy of the United States of America in the Netherlands Ms. Jessica R. Holmes, Attaché, Office of the Counsellor for Legal Affairs, Embassy of the United States of America in the Netherlands

Case Concerning Legality of Use of Force (Serbia v. Belgium) General List No.: 105 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reachinghealth and environmental damage;

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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbsand other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003 – Written statement of FR Yugoslavia

Request for extension of time-limits State Party

Remarks

FR Yugoslavia (2 times)

3. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Official citation: Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 124 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc and Kreća, Duinslager; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 140, para. 51) THE COURT, (1) By twelve votes to four, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Judge ad hoc Duinslaeger AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fifteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća, Duinslaeger AGAINST: Judge Oda Declarations/Opinions Declaration

Judge Koroma

Separate Opinion

Judges Oda, Higgins, Parra-Aranguren and Kooijmans

Dissenting Opinions

Vice-President Weeramanty, Acting President, Judges Shi, Vereshchetin and Judge ad hoc Kreća



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Sources of Law UN Charter

UN Charter, p. 132(18) Art. 33, p. 140(48) Chapter VII, p. 140(50) Art. 53(1), p. 126(3)

ICJ Statute

ICJ Statute, p. 132(18) Art. 31, p. 128(12) Art. 31(5), p. 129(13) Art. 36(2), p. 125(2), 132(22, 23), 135(30, 31), 139(45) Art. 40(3), p. 128(11) Art. 41, p. 124 Art. 48, p. 124

ICJ Rules of Court

Art. 35(3), p. 129(12) Art. 38(2), p. 139(43) Art. 38(4), p. 128(9) Art. 42, p. 128(11) Art. 73, p. 124, 128(5) Art. 73(2), p. 128(9) Art. 74, p. 124 Art. 74(3), p. 128(10) Art. 75(1), p. 129(8)

PCIJ case-law

Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p. 10], p. 135(30)

ICJ case-law

Current Order of 13 September 1993, p. 138(40) Previous East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 132(20), 134(28) Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 34], p. 134(26) Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, [I.C.J. Reports 1952, p. 103], p. 135(30) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 138(40) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 137(38) Land and Maritime Boundary between Cameroon and Nigeria, Judgment of 11 June 1998, [I.C.J. Reports 1998, p. 298(43)], p. 135(30)

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Sources of Law (cont.) Treaties

1930 Convention of Conciliation, Judicial Settlement and Arbitration between the Kingdom of Yugoslavia and Belgium of 25 March 1930 (entry into force 3 September 1930), p. 129(14), 138(42), 139(43) 1948 Genocide Convention of 9 December 1948, p. 125(2, 3), 130(14), 136(34, 35), 137(36, 37, 38), 138(39, 41), 139(45) 1948 Danube Convention on Free Navigation on the Danube, p. 126(3) 1966 International Covenant on Civil and Political Rights, p. 126(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 126(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 126(3)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 135(31)

Inter(national) legal references

UN document A/47/485, p. 136(32)

Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 279 Date of Judgment: 15 December 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higg1ns, Parra-aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judges ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations. Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon



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its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its own conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursu­ing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be stopped from continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of proceed­ings, subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FR Y within and vis-à-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status.

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Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-à-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force. Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters.

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Text of the operative paragraph(s) (p. 328, para. 129) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreća

Sources of Law UN Charter

Art. 4, p. 310(77), 322(110), Art. 93(1), p. 292(28), 299(47), 301(51) Art. 93(2), p. 323(112) UN Charter, p. 305(64, 65), 307(71), 309(74), 321 (109), 322(110)

ICJ Statute

Art. 24(1), p. 293(30) Art. 31(3), p. 284(6), 286(17) Art. 31(5), p. 284(6), 287(18) Art. 34, p. 299(45) Art. 34(1), p. 299(46) Art. 34(3), p. 284(5) Art. 35, p. 299(45), 311(82), 317(97), 318(100, 101), 319(102), 323(110, 111, 112, 113), 325(123), 327(124, 125), Art. 35(1), p. 292(28), 298(45), 299(47), 301(53), 311(80), 315(91), 316(95), 319(102), 326(121), 327(127) Art. 35(2), p. 298–9(45), 315(92, 93), 316(95, 96), 318(99, 100), 319(102, 103), 4320(106), 322(110, 11), 323(110, 111), 324(112, 114), 326(122), 327(124), 327(126), 327(127) Art. 36, p. 299(45), 317(97), Art. 36(1), p. 319(99) Art. 36(2), p. 284(1), 298(45), 300(48, 49), 450(48, 49), 301(50), 309(74) Art. 36(6), p. 294(34), 295(35), Art. 37, p. 299(46), 317(97), 326(124), 327(125) Art. 40, p. 298(45) Art. 40(3), p. 284(5) Art. 59, p. 318(98)

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Sources of Law (cont.)

Art. 61, p. 313(85, 87), 314(89, 90), 461(83), 462(84, 86), 463(88), 464(89) Art. 61(1), p. 314(89) Art. 61(2), p. 312(84) Art. 63(1), p. 284(5)

ICJ Rules of Court

Art. 38, p. 447(44) Art. 38(4), p. 284(4) Art. 38(5), p. 294(33) Art. 43, p. 284(5) Art. 47, p. 286(17) Art. 53(2), p. 287(19) Art. 56, p. 287(19) Art. 56(1), p. 287(19) Art. 73, p. 284(2) Art. 73(2), p. 284(4) Art. 79(1), p. 285(11), 311(82) Art. 79(3), p. 285(11) Art. 89, p. 293(31), 294(32) Art. 88, p. 294(32)

PCIJ case-law

Wimbeldon, 1923, p.6, p. 321(109) Upper Silesia, 1925, no. 6, p. 321(109)

ICJ case-law

Current Order of 8 April 1993, p. 299(46), 310(78), 315(94), 316(95), 317(97, 98), 318(99) Order of 2 June 1999, p. 284(7), 294(33), 299(48), 301(50), 309(74), 458–9(73), 325(116), 328(128) Order of 30 June 1999, p. 285(8), 309(74) Order of 8 September 2000, p. 285(11) Order of 21 February 2001, p. 285(12) Order of 20 March 2002, p. 286(13) [I.C.J. Reports 1996 (II), p. 623], p. 311(82,83), 316(94) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 294(33), 319(101), 327(125) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 294(34), 296–7(38) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 295(34)



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Sources of Law (cont.) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 295(34) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 328(128) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 595], p. 296(39), 313(86) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 296(39), 301(54), 306(68), 308(71, 73), 311(79), 312(83), 313(86) Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 298(46) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 298(46) Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 298(46) Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 298(46) Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 298(46) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 298(46) Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 298(46) Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 328(128)

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Sources of Law (cont.) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 319(101) Treaties

1948 Genocide Convention of 9 December 1948, p. 284(1), 290(23), 292(28, 29), 296(39, 40, 41), 297(42, 43), 298(45), 299(46), 300(48), 311(81), 313(87), 315(93, 94), 316(96), 317(97), 317(98), 324(114), 326(122) 1969 Vienna Convention on the Law of Treaties, p. 318(100), 326(120) 1922 Convention relating to Upper Silesia, p. 321(108) 1919 Treaty of Versailles, p. 320(104), 321(109) 1930 Convention of Conciliation, Judicial Settlement and Arbitration between Yugoslavia and Belgium of 3 September 1930, p. 284(7), 298(45), 324(115), 325(116, 117, 118, 119), 326(121), 327(126)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 300(49), 303(60), 304(61, 62), 306(66), 307(70), 307(71), 309(74), 313(88), GA resolution 47/229, p. 305(63) GA resolution 49/19 B of 23 December 1994, p. 306(68) GA resolution 52/215 A of 20 January 1998, p. 306(68) GA resolution 46/221 of 20 December 1992, p. 306(68) GA resolution 48/223 of 23 December 1993, p. 306(68) UN document, A/46/915, Annex I, p. 302(57) UN document, A/46/915, Annex II, p. 302(57) UN document S/RES/777, p. 310(75) UN document A/47/474, p. 304(61) UN document A/47/485, p. 307(70), 309(74) UN document S/RES/1326, p. 310(76) A/47/11, p. 306(68) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 322(110) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 323(110) SC resolution 757(1992), p. 303(58, 59)



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Sources of Law (cont.) SC resolution 777(1992), p. 304(61), 305(64, 65), 310(77) SC resolution 713(1991), p. 303(58) SC resolution 821(1993), p. 305(63) SC resolution 9 of 1946, p. 315(92), 317(97) Official Note by the Permanent Mission of Yugoslavia to the UN, p. 456(68) 8 December 2000 Letter from the USG and Legal Counsel to the Minister of Foreign Affairs of the FR Yugoslavia, p. 461(83) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 321(109) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 322(109) UN document ST/LEG/8, p. 308(71) A/50/910-S/1996/231, p. 308(71) A/51/95-S/1996/251, p. 308(71) A/50/928-S/1996/263, p. 308(71) A/50/930-S/1996/260, p. 308(71) A/53/992, p. 308(72) A/55/528-S/2000/1043, p. 310(75) GA resolution 55/12 of 1 November 2000, p. 310(76), 314(88) C.N.311.1999.TREATIES-1, p. 308(72) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 319(102) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 319(103) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 285(12) Letter of 8 June 2000 of the Agent of Belgium, p. 285(10) Letter of 12 May 1999 of the Agent of Serbia and Montenegro, p. 324(115) Letter of 1 February 2001 of the Agent of Belgium, p. 285(12)

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Sources of Law (cont.) Letter of 8 February 2002 of the Agent of the FR Yugoslavia, p. 285(13), Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 312(84) Letter of 26 February 2002 of the Agent of Belgium, p. 285(13) Letter of 5 February 2002 of the Ambassador of FR Yugoslavia to the Netherlands, p. 581(13) Letter of 16 January 2003 of the Agent of France, p. 286(15) Letter of 26 February 2004 of the Agent of Serbia and Montenegro, p. 287(19), Letter of 18 December 2003 of the Agent of Serbia and Montenegro, p. 286(17) Letter of 23 December 2003 of the ICJ Registrar, p. 287(18) Letter of 27 February 2004 of the Agents of the Respondent States, p. 287(19) 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 291(25), 302(56), 307(69) Letter of 25 September 1992 of the PR of Bosnia and Herzegovina and Croatia to the UN Secretary-General, p. 304(61), 306(68) Letter of 29 September 1992 of the UN Under Secretary-General to the PR Bosnia and Herzegovina and Croatia, p. 304(62), 307(70) 27 October 2000 letter of President of FR Yugoslavia to UN Secretary-General, p. 309(75)

Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.l.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate Mr. Ian Brownlie, C.B.E., Q.c., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,



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Serbia (cont.) Assistants

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms. Marijana Santrač, LL.B., M.A. (Central European University), Ms. Dina Dobrković, LL.B.,

Technical Assistant

Mr. Vladimir Srećković, Ministry of Foreign Affairs of Serbia and Monte­negro,

Belgium Agent

Mr. Jan Devadder, Director-General, Legal Affairs, Ministry of Foreign Affairs, Brussels,

Deputy Agent

Ms. Valérie Delcroix, Conseiller adjoint, Directorate of Public International Law, Directorate-General of Legal Affairs, Ministry of Foreign Affairs, Brussels,

Counsel

Mr. Daniel Bethlehem, Q.C., Director, Lauterpacht Research Centre for International Law, Cambridge,

Adviser

Ms. Clare Da Silva, Research Assistant, Lauterpacht Research Centre for International Law, Cambridge,

Case Concerning Legality of Use of Force (Serbia v. Canada) General List No.: 106 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondenthas acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reachinghealth and environmental damage;



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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbsand other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003– Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 4. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Section B – Provisional Measures Official citation: Legality of Use of Force (Yugoslavia v. Canada), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 259 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Lalonde and Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 274, para. 47) THE COURT, (1) By twelve votes to four, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Judge ad hoc Lalonde AGAINST: Vice-President Weeramantry, Acting President; Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fifteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Lalonde and Kreća AGAINST: Judge Oda Declarations/Opinions Declarations

Judge Koroma

Separate Opinion

Judges Oda, Higgins, Parra-Aranguren and Kooijmans

Dissenting Opinion

Vice-President Weeramantry, Acting President, Judges Shi and Vereshchetin,Judge ad hoc Kreća

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Sources of Law UN Charter

UN Charter, p. 266(18) Art. 33, p. 273(44) Chapter VII, p. 273(46) Art. 53(1), p. 261(3)

ICJ Statute

ICJ Statute, p. 266(18) Art. 31, p. 264(12) Art. 31(5), p. 265(13) Art. 36(2), p. 260(2), 266(21, 22), 269(29, 30), 139(45) Art. 40(3), p. 264(11) Art. 41, p. 259 Art. 48, p. 259

ICJ Rules of Court

Art. 35(3), p. 264(12) Art. 38(2), p. 139(43) Art. 38(4), p. 264(9) Art. 42, p. 264(11) Art. 73, p. 259, 262(5) Art. 73(2), p. 264(9) Art. 74, p. 259 Art. 74(3), p. 264(10) Art. 75(1), p. 264(8)

PCIJ case-law

Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p. 10], p. 269(29)

ICJ case-law

Current Order of 13 September 1993, p. 272(39) Previous Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 453(44)], p. 269(29) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 266(19), 269(27) Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 34], p. 269(25) Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, [I.C.J. Reports 1952, p. 103], p. 270(29) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 273(39) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 272(37) Land and Maritime Boundary between Cameroon and Nigeria, Judgment of 11 June 1998, [I.C.J. Reports 1998, p. 298(43)], p. 270(29)



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Sources of Law (cont.) Treaties

1948 Genocide Convention of 9 December 1948, p. 260(2, 3), 262(14), 271( 33, 34, 35), 272(35, 36, 37, 38), 273(40) 1966 International Covenant on Civil and Political Rights, p. 261(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 261(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 261(3)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 270(30) SC Resolution 777 (1999) of 19 September 1992, p. 270(30)

Inter(national) legal references

UN document A/47/485, p. 270(31)

Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 429 Date of Judgment: 15 December 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby, Owada, Tomka; Judges ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations. Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its own conclusion.

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Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursu­ing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be estoppedfrom continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of proceed­ings, subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FRY within and vis-à-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-à-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application.



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Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force. Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters. Text of the operative paragraph(s) (p. 474, para. 116) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999.

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Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreća

Sources of Law UN Charter

Art. 4, p. 459(76) Art. 93(1), p. 442(27), 449(46) Art. 93(2), p. 450(50) UN Charter, p. 455(64, 65), 456–7(70), 458(73), 471 (109), 472(111)

ICJ Statute

Art. 24(1), p. 435(15) Art. 31(3), p. 434(6), 435–6(16) Art. 31(5), p. 434(6), 434(9), 436(17) Art. 34, p. 447–48(45) Art. 34(1), p. 447–48(45) Art. 34(3), p. 434(5) Art. 35, p. 447–48(45), 461(81), 466(96), 468(101), 471–72(109), 472(110, 111), 472–3(1112), Art. 35(1), p. 442(27), 447–48(45), 449(46), 450(52), 460(79), 464(90, 92), 465(94), 468(101), 474(114) Art. 35(2), p. 447–48(45), 450(50), 464(91, 92), 465(94,95), 466(96), 468(98, 99, 100), 468(101, 102), 470(105), 470(108), 472(109, 110, 111), 473(112), 474(114) Art. 35(3), 465(94) Art. 36, p. 447–48(45), 466(96), Art. 36(1), p. 468(100) Art. 36(2), p. 433(1), 440(27), 447(44), 449(47), 450(48, 49), 458(73) Art. 36(6), p. 444(34) Art. 37, p. 466(96), Art. 40, p. 470–1(108) Art. 40(3), p. 434(5) Art. 59, p. 467(97) Art. 61, p. 445(38), 461(82), 461(83), 462(84, 86), 463(88), 464(89) Art. 61(1), p. 463(88) Art. 61(2), p. 462(84) Art. 63(1), p. 434(5)



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Sources of Law (cont.) ICJ Rules of Court

Art. 38, p. 447(44) Art. 38(2), p. 440(23) Art. 38(4), p. 434(4) Art. 38(5), p. 443(32) Art. 43, p. 434(5) Art. 47, p. 435–6(16) Art. 53(2), p. 436(19) Art. 56, p. 436(17) Art. 56(1), p. 436(18) Art. 73, p. 433(2) Art. 73(2), p. 434(4) Art. 79(1), p. 434(10), 897(81) Art. 79(3), p. 434(10) Art. 89, p. 443(30) Art. 88, p. 443(31) Art. 99, p. 462(84)

PCIJ case-law

Wimbeldon, 1923, p. 6, p. 465(93), 470(108) Upper Silesia, 1925, no. 6, p. 470(108)

ICJ case-law

Current Order of 8 April 1993, p. 447–48(45), 459–60(77), 465(93), 465– 66(95), 467(97, 98) Order of 2 June 1999, p. 434(7), 443–4(32), 449(47), 458(73), 458–9(73), 474(115) Order of 30 June 1999, p. 434(8) Order of 8 September 2000, p. 434(10) Order of 21 February 2001, p. 435(11) Order of 20 March 2002, p. 435(12) [I.C.J Reports 1996 (II), p. 623], p. 461(81, 82), 465(93) [I.C.J. Reports 2003, p. 12(18)], p. 445(38), 450–1(53), 455–56(67), 456–57(70), 458(72), 460(79), 461(82), 462(85) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 443(31), 468(100) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 444(33), 445(37) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 444(33)

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Sources of Law (cont.) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 444(33) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 474(115) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 595], p. 445(38), 462(85) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 450–1(53), 455–56(67) Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 447(45) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 447(45) Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 447(45) Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 447–48(45) Aerial Incident of July 27th, 1955 (Israel v Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 447–48(45) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 447–48(45) Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 447–48(45), 474(115) Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 467(97) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 468(100)



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Sources of Law (cont.) Treaties

1948 Genocide Convention of 9 December 1948, p. 433(1), 439(22), 440(23), 442(27, 28), 446(40, 41, 42), 449(47), 460(80), 897(82), 461–62(83), 462–63(86), 463(87), 464(92), 465(93, 95), 466(96), 467(97), 473(113) 1969 Vienna Convention on the Law of Treaties, p. 467(99) 1922 Convention relating to Upper Silesia, p. 470–1(108) 1919 Treaty of Versailles, p. 469(103), 470(108)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 450(48), 453(59, 60, 61), 455(65, 67), 456(69, 70), 458(73), 463(87) GA resolution 47/229, p. 454(62) GA resolution 46/221 of 20 December 1992, p. 455(67) GA resolution 48/223 of 23 December 1993, p. 455(67) UN document, A/46/915, Annex I, p. 451–52(56) UN document, A/46/915, Annex II, p. 451(55) UN document S/RES/777, p 452(58) UN document A/47/474, p. 453(60) UN document A/47/485, p. 458(73) UN document S/RES/1326, p. 459(75) A/47/11, p. 455–56(67) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 471(109) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 472(111) SC resolution 757(1992), p. 452(57, 58) SC resolution 777(1992), p. 450(48), 452(58), 453(60), 454(62, 63), 455(64), 458(73), 459(74, 76) SC resolution 713(1991), p. 452(58) SC resolution 821(1993), p. 454(62) SC resolution 9 of 1946, p. 464(91), 466–67(96) Official Note by the Permanent Mission of Yugoslavia to the UN, p. 456(68) 8 December 2000 Letter from the USG and Legal Counsel to the Minister of Foreign Affairs of the FR Yugoslavia, p. 461(83)

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Sources of Law (cont.) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 470–1(108) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 470–1(108) UN document ST/LEG/8, p. 456–7(70) A/50/910-S/1996/231, p. 456–7(70) A/51/95-S/1996/251, p. 456–7(70) A/50/928-S/1996/263, p. 456–7(70) A/50/930-S/1996/260, p. 456–7(70) A/53/992, p. 457(71) GA resolution 55/12 of 1 November 2000, 459(75), 463(87) C.N.311.1999.TREATIES-1, p. 457(71) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 470(102) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 468–69(102) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 435(11) Letter of 8 February 2002 of the Agent of the FR Yugoslavia, p. 435(12), Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 462(83) Letter of 5 February 2003 of the Ambassador of FR Yugoslavia to the Netherlands, p. 435(14) Letter of 27 February 2004 of the Agents of the Respondent States, p. 436(18) Letter of 25 September 1992 of the PR of Bosnia and Herzegovina and Croatia to the UN Secretary-General, p. 453(60) Letter of 29 September 1992 of the UN Under Secretary-General to the PR Bosnia and Herzegovina and Croatia, p. 453(61) 27 October 2000 letter of President of FR Yugoslavia to UN Secretary-General, p. 459(74)



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Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.l.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate Mr. Ian Brownlie, C.B.E., Q.c., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international, Assistants

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms. Marijana Santrač, LL.B., M.A. (Central European University), Ms. Dina Dobrković, LL.B.,

Technical Assistant

Mr. Vladimir Srećković, Ministry of Foreign Affairs of Serbia and Monte­negro,

Canada Agent

Ms. Colleen Swords, Legal Adviser to the Department of Foreign Affairs,

Deputy Agent

Mr. David Sproule, Department of Foreign Affairs,

Counsel and Advocates

Mr. L. Alan Willis, Q.C.,

Counsel

Ms. Laurie Wright, Department of Justice,

Ms. Ruth Ozols Barr, Department of Justice, Ms. Sabine Nolke, Department of Foreign Affairs, Ms. Marie-Josée Rhéaume, Department of Foreign Affairs, Ms. Anik Beaudoin, Department of Justice,

CASE CONCERNING LEGALITY OF USE OF FORCE (Serbia v. France) General List No.: 107 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;



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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbs and other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003 – Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 5. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Section B – Provisional Measures

Official citation: Legality of Use of Force (Yugoslavia v. France), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 363 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 374, para. 39) THE COURT, (1) By twelve votes to three, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fourteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća AGAINST: Judge Oda Declarations/Opinions Declarations

Vice-President Weeramantry (Acting President); Judges Shi, Koroma, Vereschetin

Separate Opinion

Judges Oda and Parra-Aranguren

Dissenting Opinion

Judge ad hoc Kreća

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Sources of Law UN Charter

UN Charter, p. 370(17) Art. 33, p. 374(36) Chapter VII, p. 374(36) Art. 53(1), p. 365(3)

ICJ Statute

ICJ Statute, p. 370(17) Art. 31, p. 369(12) Art. 31(5), p. 369(13) Art. 40(3), p. 368(11) Art. 41, p. 363 Art. 48, p. 363

ICJ Rules of Court

Art. 35(3), p. 368(12) Art. 38(2), p. 139(43) Art. 38(4), p. 368(9) Art. 38(5), p. 364(2), 373(29, 30, 31) Art. 42, p. 368(11) Art. 73, p. 363, 367(5) Art. 73(2), p. 368(9) Art. 74, p. 363 Art. 74(3), p. 368(10) Art. 75(1), p. 368(8)

ICJ case-law

Current Order of 13 September 1993, p. 372(27) Previous East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 370(19) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 373(27) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 372(25)

Treaties

1948 Genocide Convention of 9 December 1948, p. 364(2, 3), 370(21), 371(22, 23), 372(24, 25, 26), 373(28, 33) 1966 Internatnal Covenant on Civil and Political Rights, p. 365(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 365(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 365(3)



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Section C – Preliminary Objections

Official citation: Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 575 Date of Judgment: 15 December 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby, Owada, Tomka; Judges ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations. Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its olvn conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­ cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursuing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be stopped from continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of ­proceed­ings,

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subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FRY within and vis-a-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat Adherence to practice prevailing prior to break-up of SFRY pending authoritative determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-a-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force.

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Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters. Text of the operative paragraph(s) (p. 619, para. 116) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreća

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Sources of Law UN Charter

Art. 4, p. 599(61), 601(76) Art. 93(1), p. 587(27), 594(46) Art. 93(2), p. 618(112) UN Charter, p. 600(64, 65), 602(70), 603(73), 616 (109), 617(111)

ICJ Statute

Art. 24(1), p. 581(15) Art. 31, p. 580(5) Art. 31(3), p. 434(6), 435–6(16) Art. 31(5), p. 582(17) Art. 34, p. 594(45) Art. 34(1), p. 594(45) Art. 34(3), p. 580(5) Art. 35, p. 594(45), 595(50), 606(81), 610(94), 610(96), 618(1112), Art. 35(1), p. 587(27), 594(45)(46), 596(52), 609(90, 92), 610(94), 613(101), 619(114) Art. 35(2), p. 594(45), 609(91, 92), 610(93), 610(94), 613(100, 101, 102), 615(105, 108), 616–7(109, 110, 111), 618(112), 619(114) Art. 35(3), 617(110) Art. 36, p. 594(45), 610(96), Art. 36(1), p. 468(100) Art. 36(2), p. 587(27), 595(48), 595(49), 450(48, 49), 458(73) Art. 36(6), p. 589(33), 590(34) Art. 37, p. 610(96), Art. 40, p. 593(44) Art. 40(3), p. 580(5) Art. 59, p. 467(97) Art. 61, p. 591(38), 461(82), 461(83), 607(84, 86), 608(88), 609(89) Art. 61(1), p. 608(88) Art. 61(2), p. 607(84) Art. 63(1), p. 580(5)

ICJ Rules of Court

Art. 38, p. 593(44) Art. 38(4), p. 580(4) Art. 38(5), p. 579(1), 589(32), 593(44) Art. 43, p. 580(5) Art.47, p. 581–2(16) Art. 53(2), p. 582(19) Art. 56, p. 582(17)(18) Art. 56(1), p. 582(18) Art. 73, p. 579(2) Art. 73(2), p. 580(4) Art. 79(1), p. 580(9), 606(81) Art. 79(3), p. 580(9) Art. 88, p. 589(31) Art. 89, p. 588(30), 589(31) Art. 99, p. 607(84)

PCIJ case-law

Wimbeldon, 1923, p. 6, p. 610(93), 615(108) Upper Silesia, 1925, no. 6, p. 616(108)



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Sources of Law (cont.) ICJ case-law

Current Order of 8 April 1993, p. 594(45), 605(77), 610(93), 610(94), 465–66(95), 467(97, 98) Order of 2 June 1999, p. 580(7), 589(32), 604(73), 458–9(73), 619(115) Order of 30 June 1999, p. 580(8), 593(44), 595(47)(48) Order of 8 September 2000, p. 580(9) Order of 21 February 2001, p. 580(10) Order of 20 March 2002, p. 581(12) [I.C.J Reports 1996 (II), p. 623], p. 606 (81, 82), 465(93) [I.C.J. Reports 2003, p. 12(18)], p. 603(72), 605(79), 606(82), 607(85), 609(87) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 589(31), 613(100) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 590(33), 591(37) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 590(33) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 590 (33) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 619(115) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 595], p. 591(38), 607(85) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 591(38), 596(53), 601(67) Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 593(45)

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Sources of Law (cont.) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 593(45), 609(89) Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 593(45) Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 593(45) Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 593(45) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 593(45) Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 593(45), 619(115) Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 612(97) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 613(100) Treaties

1948 Genocide Convention of 9 December 1948, p. 579(1), 584–5(22), 587(27)(28), 591(40), 592(41)(42), 595(47), 606(80), 607(83), 608(87), 609(92), 610(93), 610(94), 618(113) 1969 Vienna Convention on the Law of Treaties, p. 612(99) 1922 Convention relating to Upper Silesia, p. 470–1(108) 1919 Treaty of Versailles, p. 614(103), 615(108)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 595(48), 598(59, 60, 61), 600(65), 67), 602(69, 70), 608(87) GA resolution 47/229, p. 600(62) GA resolution 46/221 of 20 December 1991, p. 601(67) GA resolution 48/223 of 23 December 1993, p. 601(67) GA resolution 49/19B of 23 December 1994, p. 601(67) GA resolution 52/215A of 20 January 1998, p. 601(67)



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Sources of Law (cont.) GA resolution 55/12, p. 604(75), 608(87) UN document, A/46/915, Annex I, p. 597(56) UN document, A/46/915, Annex II, p. 596(55) UN document S/RES/777, p. 604(74) UN document A/47/474, p. 599(60) UN document A/47/485, p. 602(69) UN document S/RES/1326, p. 604(75) UN document A/47/11, p. 601(67) UN document A/57/474, p. 599(60) UN document A/55/528-S/2000/1043, p. 604(74) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 471(109) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 617(111) SC resolution 9 of 1946, p. 609(91), 610(93) SC resolution 713(1991), p. 598(58) SC resolution 757(1992), p. 597(57), 598(58) SC resolution 777(1992), p. 597(58), 600(62, 63, 64), 604(76), 604(74, 76) SC resolution 821(1993), p. 600(62) Official Note by the Permanent Mission of Yugoslavia to the UN, p. 601(68) 8 December 2000 Letter from the USG and Legal Counsel to the Minister of Foreign Affairs of the FR Yugoslavia, p. 606(83) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 616(108) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 616(108) UN document ST/LEG/8, p. 603(70) A/50/910-S/1996/231, p. 603(70) A/51/95-S/1996/251, p. 603(70) A/50/928-S/1996/263, p. 603(70) A/50/930-S/1996/260, p. 603(70)

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Sources of Law (cont.) A/53/992, p. 603(71) GA resolution 55/12 of 1 November 2000, 604(75), 608(87) C.N.311.1999.TREATIES-1, p. 603(71) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 613(102) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 614(102), 615(105) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 580(10) Letter of 5 February 2001 of the Agent of France, p. 580(10) Letter of 8 February 2002 of the Agent of the FR Yugoslavia, p. 581(11), Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 607(83) Letter of 22 February 2002 of the Agent of France, p. 581(11) Letter of 5 February 2002 of the Ambassador of FR Yugoslavia to the Netherlands, p. 581(13) Letter of 19 February 2003 of the Agent of France, p. 581(14), Letter of 28 February of the Agent of Serbia and Montenegro, p. 581(14), Letter of 18 December 2003 of the Agent of Serbia and Montenegro, p. 581–2(16) Letter of 23 December 2003 of the ICJ Registrar, p. 582(17) Letter of 27 February 2004 of the Agents of the Respondent States, p. 582(18) 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 586(24), 596(55) Letter of 25 September 1992 of the PR of Bosnia and Herzegovina and Croatia to the UN Secretary-General, 599(60), 601(68) Letter of 29 September 1992 of the UN Under Secretary-General to the PR Bosnia and Herzegovina and Croatia, p. 599(61)



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Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.L.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,

Assistants

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms Marijana Santrač, LL.B., M.A. (Central European University), Ms Dina Dobrković, LL.B.,

Technical Assistant

Mr. Vladimir Srećković, Ministry of Foreign Affairs of Serbia and Monte­negro,

France Agent

Mr Ronny Abraham, Director of Legal Affairs, Ministry for Foreign Affairs

Counsel & Advocate

Mr Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the International Law Commission

Advisers

Ms Michèle Dubrocard, Legal Counsellor, Embassy of France in the Netherlands, Mr. Pierre Bodeau, chargé de mission, Legal Affairs Department, Ministry of Foreign Affairs,

CASE CONCERNING LEGALITY OF USE OF FORCE (Serbia v. Germany) General List No.: 108 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;



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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbs and other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003 – Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 1. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Section B – Provisional Measures Official citation: Legality of Use of Force (Yugoslavia v. Germany), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 422 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc and Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 433, para. 38) THE COURT, (1) By twelve votes to three, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fourteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća AGAINST: Judge Oda Declarations/Opinions Declarations

Vice-President Weeramantry (Acting President); Judges Shi, Koroma, Vereschetin

Separate Opinion

Judges Oda and Parra-Aranguren

Dissenting Opinion

Judge ad hoc Kreća

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Sources of Law UN Charter

UN Charter, p. 429(17, 18) Art. 33, p. 433(35) Chapter VII, p. 433(37) Art. 53(1), p. 424(3)

ICJ Statute

ICJ Statute, p. 429(17) Art. 31, p. 428(12) Art. 31(5), p. 428(13) Art. 40(3), p. 427(11) Art. 41, p. 422 Art. 48, p. 422

ICJ Rules of Court

Art. 35(3), p. 428(12) Art. 38(4), p. 427(9) Art. 38(5), p. 432(29, 30, 31) Art. 42, p. 427(11) Art. 73, p. 422, 423(5) Art. 73(2), p. 427(9) Art. 74, p. 422 Art. 74(3), p. 427(10) Art. 75(1), p. 427(8)

ICJ case-law

Current Order of 13 September 1993, p. 431(27) Previous Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 431(27) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996(II) p. 810(16)], p. 431(25)

Treaties

1948 Genocide Convention of 9 December 1948, p. 423(2, 3), 429(21), 430(22, 23, 24), 431(25, 26, 27, 28), 432(33) 1948 Danube Convention, p. 424(3) 1966 International Covenant on Civil and Political Rights, p. 424(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 424(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 424(3)



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Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 720 Date of Judgment: 15 December 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judges ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations. Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its own conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­ cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursu­ing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be estoppedfrom continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of

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Statute, challenged – If not party to Statute at time of institution of proceedings, subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of F Y within and vis-a-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-a-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force.

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Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in t travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters. Text of the operative paragraph(s) (p. 765, para. 115) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreća

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Sources of Law UN Charter

Art. 4, p. 750(75) Art. 93(1), p. 733(26), 740(45), 741(49) Art. 93, p. 741(49) Art. 93(2), p. 763(110), UN Charter, p. 746(63, 64), 748(69), 750(75), 762(109), 763(111)

ICJ Statute

Art. 24(1), p. 727(16), Art. 31, p. 725(6) Art. 31(5), p. 727(15, 16), 434(9), 436(17) Art. 34, p. 740(44) Art. 34(1), p. 740(44) Art. 34(3), p. 725(5), 740(44) Art. 35, p. 739(44), 751(80), 756(95), 758(100), 763(111), 762(109), 4763(110, 111), 764(113), Art. 35(1), p. 733(26), 739(44), 740(45), 741(51), 751(78), 754(89, 90), 756(93), 758(100), 474(114) Art. 35(2), p. 755(91, 92), 756(94, 95), 68(98, 99, 100), 758(97, 98, 99), 760(105), 762(108), 756(93, 94), 758(97, 98, 99), 758(100), 759(101), 763(111), 764(112), Art. 35(3), 756(93) Art. 36, p. 740(44), 756(95), Art. 36(1), p. 758(99) Art. 36(2), p. 733(26), 740(47), 741(48) Art. 36(6), p. 735(32, 33) Art. 37, p. 756(95), Art. 40, p. 738(43) Art. 40(3), p. 725(5) Art. 59, p. 757(96) Art. 61, p. 737(37), 752(83), 753(84, 85), 754(87) Art. 61(1), p. 754(87) Art. 61(2), p. 752(83) Art. 63(1), p. 725(5)

ICJ Rules of Court

Art. 38, p. 738(43) Art. 38(1), p. 731(21) Art. 38(2), p. 731(21) Art. 38(4), p. 725(4) Art. 38(5), p. 724(1), 735(31), 738(43) Art. 43, p. 725(5) Art. 47, p. 727(14) Art. 53(2), p. 727(18), Art. 56, p. 727(15, 17), Art. 73, p. 724(2) Art. 73(2), p. 725(4) Art. 79(1), p. 725(9), 897(81) Art. 79(3), p. 725(9) Art. 88, p. 734(30) Art. 89, p. 734(20) Art. 99, p. 752(83)



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Sources of Law (cont.) PCIJ case-law

Wimbeldon, 1923, p.6, p. 755(92), 761(107) Upper Silesia, 1925, no. 6, p. 761(107)

ICJ case-law

Current Order of 8 April 1993, p. 740(44), 750(76), 755(92), 757(96), 758(97) Order of 2 June 1999, p. 725(7), 735(31), 740(46), 749(72), 764(114), Order of 30 June 1999, p. 725(8) Order of 21 February 2001, p. 726(10) Order of 20 March 2002, p. 726(11) [I.C.J Reports 1996 (II), p. 623], p. 736(37), 751(80, 81), 755(92) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 734(30), 758(99) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 735(32), 736(36) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 735(32) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 735(32) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 764(114) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 737(38), 741(52), 747(66), 748(69), 749(71), 751(78), 752(81), 754(87) Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 739(44) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 739(44)

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Sources of Law (cont.) Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 739(44) Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 739(44) Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 739(44) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 4739(44) Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 739(44), 764(114) Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 757(96) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 758(99) Treaties

1948 Genocide Convention of 9 December 1948, p. 724(1), 731(21), 733(26, 27), 736(37), 737(39, 40, 41), 751(79, 80), 738(43), (47), 755(92), 753(85), 764(112) 1969 Vienna Convention on the Law of Treaties, p. 758(98) 1922 Convention relating to Upper Silesia, p. 761(107) 1919 Treaty of Versailles, p. 759(102), 761(107)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 741(47), 744(58, 59, 60), 746(64, 66), 748(69, 70), 753(86), 463(87) GA resolution 47/229, p. 745(61) GA resolution 46/221 of 20 December 1992, p. 746(66) GA resolution 48/223 of 23 December 1993, p. 746(66) GA resolution 49/19B of 23 December 1994, p. 747(66) GA resolution 52/215 of 20 January 1998, p. 747(66) GA resolution 55/12 of 1 November 2000, p. 749(74), 753(86) UN document, A/46/915, Annex I, p. 742(55) UN document, A/46/915, Annex II, p. 742(54)



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Sources of Law (cont.) UN document S/RES/777, p 744(59), 745(61), 746(63), 750(75), 743(57), UN document A/47/474, p. 744(59) UN document A/47/485, p. 747(68) UN document S/RES/1326, p. 749(74) A/47/11, p. 746(66) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 762(108) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 763(110) SC resolution 777(1992), p. 450(48), 452(58), 453(60), 454(62, 63), 455(64), 458(73), 459(74, 76) SC resolution 713(1991), p. 452(58) SC resolution 821(1993), p. 745(61) SC resolution 9 of 15 October 1946, p. 755(90), 757(95) Official Note by the Permanent Mission of Yugoslavia to the UN, p. 456(68) 8 December 2000 Letter from the USG and Legal Counsel to the Minister of Foreign Affairs of the FR Yugoslavia, p. 752(82) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 761(107) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 470–1(108) UN document ST/LEG/8, p. 748(69) A/50/910-S/1996/231, p. 748(69) A/51/95-S/1996/251, p. 748(69) A/50/928-S/1996/263, p. 748(69) A/50/930-S/1996/260, p. 748(69) A/53/992, p. 748(70) GA resolution 55/12 of 1 November 2000, p. 749(74), 753(86) C.N.311.1999.TREATIES-1, p. 748(70) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 759(101)

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Sources of Law (cont.) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 759(101) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 725(10) Letter of 30 January 2001 of the Agent of Germany, p. 726(10), Letter of 26 February 2003 of the Agent of Germany, p. 726(12) Letter of 28 February 2003 of the Agent of FR Yugoslavia, p. 726(12) Letter of 5 February 2003 of the Ambassador of FR Yugoslavia, p. 726(13) Letter of 12 May 1999 of the Agent of Serbia and Montenegro, p. 324(115) Letter of 8 February 2002 of the Agent of the FR Yugoslavia, p. 726(11), Letter of 22 February 2002 of the Agent of Germany, p. 726(11) Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 752(82) Letter of 5 February 2003 of the Ambassador of FR Yugoslavia to the Netherlands, p. 726(13) Letter of 18 December 2003 of the Agent of Serbia and Montenegro, p. 727(14) Letter of 27 February 2004 of the Agents of the Respondent States, p. 727(17) 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 732(23), 742(54), 747(68) Letter of 25 September 1992 of the PR of Bosnia and Herzegovina and Croatia to the UN Secretary-General, p. 304(61), 306(68) Letter of 29 September 1992 of the UN Under Secretary-General to the PR Bosnia and Herzegovina and Croatia, p. 744(60), 747(69) 27 October 2000 letter of President of FR Yugoslavia to UN Secretary-General, p. 749(73)



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Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.L.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,

Assistants

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms. Marijana Santrač, LL.B., M.A. (Central European University), Ms. Dina Dobrković, LL.B.,

Technical Assistant

Mr. Vladimir Srećković, Ministry of Foreign Affairs of Serbia and Monte­negro,

Germany Agents

Mr. Thomas Läufer, Director General for Legal Affairs and Legal Adviser, Federal Foreign Office, H.E. Mr. Edmund Duckwitz, Ambassador of the Federal Republic of Germany to the Kingdom of the Netherlands,

Co-Agent & Counsel

Mr. Christian Tomuschat, Professor of Public International Law at the Humboldt University of Berlin,

Advisers

Ms. Susanne Wasum-Rainer, Head of the Public International Law Division, Federal Foreign Office, Mr. Reinhard Hassenpflug, Federal Foreign Office, Mr. Götz Reimann, Embassy of the Federal Republic of Germany in The Hague,

Assistant

Ms. Fiona Sneddon

CASE CONCERNING LEGALITY OF USE OF FORCE (Serbia v. Italy) General List No.: 109 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; — by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;



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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbs and other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003– Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 2. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Section B – Provisional Measures Official citation: Legality of Use of Force (Yugoslavia v. Italy), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 481 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Gaja and Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 493, para. 39) THE COURT, (1) By thirteen votes to three, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Judge ad hoc Gaja AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fifteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Gaja and Kreća AGAINST: Judge Oda Declarations/Opinions Declarations

Vice-President Weeramantry (Acting President); Judges Shi, Koroma, Vereschetin and Judge ad hoc Gaja

Separate Opinion

Judges Oda and Parra-Aranguren

Dissenting Opinion

Judge ad hoc Kreća

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Sources of Law UN Charter

UN Charter, p. 488(17, 18) Art. 33, p. 492(36) Chapter VII, p. 492(38) Art. 53(1), p. 483(3)

ICJ Statute

ICJ Statute, p. 488(17) Art. 31, p. 487(12) Art. 31(5), p. 487(13) Art. 40(3), p. 485(11) Art. 41, p. 481 Art. 48, p. 481

ICJ Rules of Court

Art. 35(3), p. 487(12) Art. 38(4), p. 486(9) Art. 38(5), p. 482(2), 487(14), 491(29, 30), 492(31) Art. 42, p. 485(11) Art. 73, p. 481, 485(5) Art. 73(2), p. 486(9) Art. 74, p. 481 Art. 74(3), p. 486(10) Art. 75(1), p. 485(8)

ICJ case-law

Current Order of 13 September 1993, p. 491(27) Previous East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 488(19) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 491(27) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 490(25)

Treaties

1948 Genocide Convention of 9 December 1948, p. 482(2, 3), 489(21, 22, 23), 490(24, 25, 26), 491(28), 492(33) 1948 Danube Convention, p. 483(3) 1966 International Covenant on Civil and Political Rights, p. 483(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 483(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 483(3)



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Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. Italy), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 865 Date of Judgment: 15 December 2004 Authoritative text: French Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judges ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations. Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its own conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­ cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursu­ ing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be stopped from continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of proceed­ings, subject to application of Article 35, paragraph 2, Applicant had no right to appear

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before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FRY within and vis-a-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FR Y’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-a-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force. Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of

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insti­tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters. Text of the operative paragraph(s) (p. 911, para. 116) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreća

Sources of Law UN Charter

Art. 4, p. 895(76) Art. 93(1), p. 878(27), 886(46), 887(50) Art. 93(2), p. 887(50), 909(111) UN Charter, p. 891(64, 65), 893(70), 894(73), 907(109), 908(111)

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Sources of Law (cont.) ICJ Statute

Art. 24(1), p. 871(15) Art. 31(3), p. 870(6), 872(16) Art. 31(5), p. 870(6), 870(9), 872(17) Art. 34, p. 885(45) Art. 34(1), p. 885(45) Art. 34(3), p. 870(5) Art. 35, p. 885(45), 897(81), 902(96), 904(101), 908(109), 908–9(110, 111), 909(112), Art. 35(1), p. 879(27), 885(45), 886(46), 887(52), 896(79), 900(90, 91, 92), 901(94), 904(101), 910(114) Art. 35(2), p. 885(45), 900(91, 92), 901(93, 94, 95), 903(96), 903–4(98, 99, 100), 904(101, 102), 906(105), 907(108), 908–9(109, 110, 111, 112, 113), 910(114) Art. 35(3), 901(94) Art. 36, p. 885(45), 902(96), Art. 36(1), p. 904(100) Art. 36(2), p. 878(27), 886(48, 49), 458(73) Art. 36(6), p. 881(34) Art. 37, p. 902(96), Art. 40, p. 884(44) Art. 40(3), p. 870(5) Art. 59, p. 903(97) Art. 61, p. 882(38), 897(82, 83), 898(84, 86), 899–900(88, 89) Art. 61(1), p. 899(88) Art. 61(2), p. 898(84) Art. 63(1), p. 870(5)

ICJ Rules of Court

Art. 38, p. 884(44) Art. 38(4), p. 870(4) Art. 38(5), p. 869(1), 884(44) Art. 43, p. 870(5) Art.47, p. 872(16) Art. 53(2), p. 872(19) Art. 56, p. 872(17, 18) Art. 56(1), p. 872(18) Art. 73, p. 869(2) Art. 73(2), p. 870(4) Art. 79(1), p. 870(10), 897(81) Art. 79(3), p. 871(10) Art. 89, p. 880(30) Art. 88, p. 880(31) Art. 99, p. 898(84)

PCIJ case-law

Wimbledon, 1923, p.6, p. 901(93), 906(108) Upper Silesia, 1925, no. 6, p. 907(108)



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Sources of Law (cont.) ICJ case-law

Current Order of 8 April 1993, p. 884–5(45), 896(77), 901(93), 902(95), 903(97, 98) Order of 2 June 1999, p. 870(7), 884(44), 880(32), 886(47), 895(73), 895(73), 910(115) Order of 30 June 1999, p. 870(8) Order of 8 September 2000, p. 871(10) Order of 21 February 2001, p. 871(11) Order of 20 March 2002, p. 871(12) [I.C.J Reports 1996 (II), p. 623], p. 882(38), 897(82), 898(84), 901(93) [I.C.J. Reports 2003, p. 12(18)], p. 445(38), 450–1(53), 455–56(67), 456–57(70), 458(72), 460(79), 461(82), 462(85) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 443(31), 904(100) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 881(33), 882(37) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 881(33) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 881(33) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 910(115) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 595], p. 882(38), 898(85) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 882(38), 887(53), 894(72), 897(82), 898(85), 899(87) Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 884(45)

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Sources of Law (cont.) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 884(45) Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 884(45) Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 884(45) Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 885(45) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 885(45) Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 885(45), 910(115) Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 903(97) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 904(100) Treaties

1948 Genocide Convention of 9 December 1948, p. 869(1), 876(22), 877(23), 878–9(27, 28), 882–3(40, 41, 42), 886(47), 460(80), 897(81, 82), 898(83, 84), 462–63(86), 899(87), 900(92), 901(93), 902(95, 96), 903(97), 910(113) 1969 Vienna Convention on the Law of Treaties, p. 903(99) 1922 Convention relating to Upper Silesia, p. 907(108) 1919 Treaty of Versailles, p. 905(103), 906(108)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 886(48), 889–90(59, 60, 61), 891–2(65, 67), 893(69, 70), 899(87) GA resolution 47/229, p. 891(62) GA resolution 46/221 of 20 December 1992, p. 892(67) GA resolution 48/223 of 23 December 1993, p. 892(67) GA resolution 49/19B of 23 December 1994, p. 892(67) GA resolution 52/215 A of 20 January 1998, p. 892(67)



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Sources of Law (cont.) UN document, A/46/915, Annex I, p. 888(56) UN document, A/46/915, Annex II, p. 888(55) UN document A/47/474, p. 890(60) UN document A/47/485, p. 891(61), 893(69) UN document S/RES/1326, p. 895(75) UN document A/55/528-S/2000/1043, p. 895(74) A/47/11, p. 892(67) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 908(109) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 909(111) SC resolution 757(1992), p. 889(58) SC resolution 777(1992), p. 888(57), 888(58), 890(60), 891(62, 63, 64), 895(74, 76) SC resolution 713(1991), p. 889(58) SC resolution 821(1993), p. 891(62) SC resolution 9 of 1946, p. 900(91), 903(96) 27 April 1992 Official Note by the Permanent Mission of Yugoslavia to the UN, p. 892(68) 8 December 2000 Letter from the USG and Legal Counsel to the Minister of Foreign Affairs of the FR Yugoslavia, p. 898(83) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 907(108) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 907(108) UN document ST/LEG/8, p. 894(70) A/50/910-S/1996/231, p. 894(70) A/51/95-S/1996/251, p. 894(70) A/50/928-S/1996/263, p. 894(70) A/50/930-S/1996/260, p. 894(70) A/53/992, p. 894(71) GA resolution 55/12 of 1 November 2000, p. 895(75), 899(87) C.N.311.1999.TREATIES-1, p. 894(71)

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Sources of Law (cont.) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 905(102) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 905(102) Inter(national) legal references

17 April 2000 Letter of the Ambassador of Italy to the Netherlands to the Court, p. 870(9) 15 May 2000 letter of the Agent of the FR Yugoslavia, p. 870(9) 15 June 2000 Letter of the Agent of Italy, p. 870(9) 3 July 2000 Letter of the Agent of the FR Yugoslavia, p. 870(9) 18 January 2001 Letter of the Foreign Minister of the FR Yugoslavia, p. 871(11) 30 January 2001 Letter of the Agent of Italy, p. 871(11) 8 February 2002 Letter of the Agent of the FR Yugoslavia, p. 871(12), Letter of 25 February 2002 of the Agent of Italy, p. 871(12) 17 January 2003 Letter of the Agent of Italy, p. 871(13) 5 February 2003 Letter of the Ambassador of FR Yugoslavia to the Netherlands, p. 871(14) Letter of 28 February 2003 of the Agent of Serbia and Montenegro, p. 871(14), 18 December 2003 Letter of the Agent of Serbia and Montenegro, p. 872(16) Letter of 23 December 2003 of the ICJ Registrar, p. 872(17) Letter of 27 February 2004 of the Agents of the Respondent States, p. 872(18) 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 877(24), 887(55), 892(68) Letter of 25 September 1992 of the PR of Bosnia and Herzegovina and Croatia to the UN Secretary-General, p. 890(60) 29 September 1992 Letter of the UN Under Secretary-General to the PR Bosnia and Herzegovina and Croatia, p. 890(61), 27 October 2000 letter of President of FR Yugoslavia to UN Secretary-General, p. 895(74)



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Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.L.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,

Assistants

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradović, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms. Marijana Santrač, LL.B., M.A. (Central European University), Ms. Dina Dobrković, LL.B.,

Technical Assistant

Mr. Vladimir Srećković, Ministry of Foreign Affairs of Serbia and Monte­negro,

Italy Agent

Mr. Ivo Maria Braguglia, Head of the Diplomatic Legal and Treaties Department, Ministry of Foreign Affairs,

Co-Agent

Mr. Umberto Leanza, Professor at the Faculty of Law, University of Rome “Tor Vergata”,

Deputy Co-Agent

Mr. Roberto Liotto, Counsellor, Embassy of the Italian Republic, The Hague,

Counsel

Mr. Luigi Sico, Professor at the Faculty of Law, University of Naples “Federico II”, Mr. Luigi Daniele, Professor at the Faculty of Law, University of Rome “Tor Vergata”, Ms. Ida Caracciolo, Professor at the Faculty of Law, University of Naples II,

Assistant

Ms. Valeria Santori, Doctor of International Law

CASE CONCERNING LEGALITY OF USE OF FORCE (Serbia v. the Netherlands) General List No.: 110 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;



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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbs and other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons.” “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003 – Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 3. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Section B – Provisional Measures Official citation: Legality of Use of Force (Yugoslavia v. Netherlands), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 542 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judgead hoc Kreća; Registrar Valencia-Ospina. Text of the operative paragraph(s) (p. 558, para. 51) The Court, (1) By eleven votes to four, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans; Against: Vice-President Weeramantry, Acting President; Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fourteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća AGAINST: Judge Oda Declarations/Opinions Declaration

Judge Koroma

Separate Opinions

Judges Oda, Higgins, Parra-Aranguren and Kooijmans

312

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Sources of Law UN Charter

UN Charter, p. 549(18, 19) Art. 33, p. 557(48) Chapter VII, p. 557(50) Art. 53(1), p. 544(3)

ICJ Statute

ICJ Statute, p. 549(18) Art. 31, p. 548(12) Art. 36(2), p. 543(2), 550(22, 23), 551(24), 553(30, 31), 557(45) Art. 40(3), p. 547(11) Art. 41, p. 542 Art. 48, p. 542

ICJ Rules of Court

Art. 35(3), p. 548(12) Art. 38(4), p. 547(9) Art. 42, p. 547(11) Art. 73, p. 542, 485(5) Art. 73(2), p. 547(9) Art. 74, p. 542 Art. 74(3), p. 547(10) Art. 75(1), p. 547(8)

PCIJ case-law

Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p. 23], p. 552(30)

ICJ case-law

Current Order of 13 September 1993, p. 555(40) Previous East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 549(20), 552(28) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 556(40) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 555(38) Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 34], p. 552(26) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 453(44)], p. 552(30) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Judgment of 11 June 1998, [I.C.J. Reports 1998, p. 298(43)], p. 553(30)

Treaties

1931 Treaty of Judicial Settlement, Arbitration and Conciliation between the Netherlands and Yugoslavia of 11 March 1931 (entry into force on 2 April 1932), p. 548(14), 556(42, 43)



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313

Sources of Law (cont.) 1948 Genocide Convention of 9 December 1948, p. 543(2, 3), 548(14), 554(34, 35, 36), 555(37, 38, 39), 554(40), 557(42) 1948 Danube Convention, p. 544(3) 1966 International Covenant on Civil and Political Rights, p. 544(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 544(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 544(3) 1978 Vienna Convention on the Succession of States in respect of Treaties, p. 556(43) UN Resolutions

SC Resolution 9 of 15 October 1946, p. 553(31) SC Resolution 757 (1992) of 30 May 1992, p. 553(31) SC Resolution 777 (1992) of 19 September 1992, p. 553(31) GA Resolution 47/1 of 22 September 1992, p. 553(31, 32) GA Resolution of 48/88 of 20 December 1993, p. 553(31)

UN documents

A/47/485, p. 553(32)

Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1011 Date of Judgment: 15 December 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations.

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Legality of Use of Force (Serbia v. the Netherlands)

Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its own conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­ cide Convention until March 2001, the substantive dispute with the Respondent, in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pur­suing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be estopped from continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of proceed­ings, subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Articles 36 and 37 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FRY within and vis-a-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status –



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Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-a-vis the United Nations in 2003 Judgment nor in inciden­tal proceedings in other cases including Order on provisional measures in present case. 1 November 2000 – Admission did not have effect of dating back – New devel­ opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special pro­vision contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force. Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. Whether Article 4 of Treaty of Judicial Settlement, Arbitration and Concilia­tion between Yugoslavia and the Netherlands of 11 March 1931 can provide basis of jurisdiction – Court’s finding that it was not open to Applicant under Article 35, paragraph I, of Statute – Whether Treaty, concluded prior to entry into force of Statute, a “treaty in force” for purposes of Article 35, para­graph 2 – Treaty envisaged jurisdiction of PCIJ – Conditions for transfer 0/ jurisdiction from pcu to ICJ

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governed by Article 37 of Statute but no similar substitution can be read into Article 35, paragraph 2, of Statute – Article 37 only applies between parties to the Statute – Article 35, paragraph 2, cannot give Applicant access to Court on basis of 1931 Treaty – Unnecessary to examine whether Treaty in force as between Parties at time of filing of Application. In view of Court’s conclusion of lack of access to Court under either para­ graph I or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters. Text of the operative paragraph(s) (p. 1060, para. 128) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreća

Sources of Law UN Charter

Art. 4, p. 1036(61), 1041(76), Art. 93(1), p. 1024(27), 1031(46), 1032(50) Art. 93(2), p. 1032(50), 1055(111) UN Charter, p. 1037(64, 65),

ICJ Statute

Art. 24(1), p. 1017(15) Art. 31, p. 1016(6) Art. 31(5), p. 1018(17) Art. 34, p. 1030(45) Art. 34(1), p. 1030(45) Art. 34(3), p. 1016(5)



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317

Sources of Law (cont.) Art. 35, p. 1030(45), 1048(96), 1050(101), 1053(108), 1054(110, 111, 112, 113), 1058(122) Art. 35(1), p. 1024(27), 1030(45), 1031(46), 1032–3(50, 52), 1042(79), 1046(90), 1058(122), 1059(124) Art. 35(2), p. 1030(45), 1046(91, 92, 93), 1047(95, 96), 1049(96, 97, 98), 1050(101, 102), 1051(105), 1053(108) 1054(111), 1059(125, 126) Art. 36, p. 1030(45), 1048(96), Art. 36(1), p. 1200(103), Art. 36(2), p. 1015(1), 1023(27), 1029(44), 1032(47, 48, 49), 301(50), 1040(73) Art. 36(6), p. 1026(33, 34), Art. 37, p. 1030(45), 1048(96), 1058(123), 1059(124) Art. 40, p. 1053(108) Art. 40(3), p. 1016(5) Art. 61, p. 1027(38), 1043–4(83, 84, 85, 86), 1045(88) Art. 61(1), p. 1045(88) Art. 61(2), p. 1044(84) Art. 63(1), p. 1016(5) ICJ Rules of Court

Art. 38, p. 1029(44) Art. 38(4), p. 1016(4) Art. 38(5), p. 1032(32) Art. 43, p. 1016(5) Article 47, p. 1018(16) Art. 53(2), p. 1018(19) Art. 56, p. 1018(17, 18) Art. 73, p. 1016(2) Art. 73(2), p. 1016(4) Art. 79(1), p. 1016(10), 1042(81) Art. 79(3), p. 1016(10) Art. 89, p. 1025(30, 31) Art. 88, p. 1025(31)

PCIJ case-law

Wimbledon, 1923, p. 6, p. 1047(96), 1052(108), Upper Silesia, 1925, no. 6, p. 1052(108)

ICJ case-law

Current Order of 8 April 1993, p. 1030(46), 1041(77), 1046(92), 1047(93), 1047(95), 1049(97, 98), 318(99), 1059(127) Order of 2 June 1999, p. 1016(7), 1025(32), 1030(47), 1040(73), 1189(73), 1056(115) Order of 30 June 1999, p. 1016(8), 309(74) Order of 8 September 2000, p. 1016(10) Order of 21 February 2001, p. 1017(11) Order of 20 March 2002, p. 1016(12)

318

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Sources of Law (cont.) [I.C.J. Reports 1996 (II), p. 623], p. 1027(38), 1043(81, 82), 1047(93) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 1025(31), 1050(100), 1059(124) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 1026(33), 1027(37) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 1026(33), Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 1026(33), Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 1059(127), Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 595], p. 296(39) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 1027(38), 1181(53), 1037(67), 1039(70), 1040 (72), 1042(79), 1043(82), 1044(85) 1045(87), Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 1029(45), Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 1029(45), Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 1029(45), Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 1029(45), Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 1029(45),



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319

Sources of Law (cont.) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 1029(45), Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 1029(45), 1059(127), Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 1049(97) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 1050(100), Treaties

1948 Genocide Convention of 9 December 1948, p. 1015(1), 1015(5), 1021(22), 1022(23), 1023(27, 28), 1028(40, 41, 42), 1032(48), 1042–3(80, 81), 1044(86), 1045(87), 1046(92, 93), 1048(96), 1055(112) 1969 Vienna Convention on the Law of Treaties, p. 1049(99), 1199(102) 1922 Convention relating to Upper Silesia, p. 1052(108) 1919 Treaty of Versailles, p. 1052(107, 108) 1930 Treaty of Conciliation, Judicial Settlement and Arbitration between Yugoslavia and the Netherlands of 11 March 1931, p. 1016(7), 1029(45), 1056(114, 115, 16), 326(121), 1059(125)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 1032(48), 1035(59), 1036(60, 61), 1185(61), 1037(65), 1038(69), 1039(70), 1040(73), 1045(87), GA resolution 47/229, p. 1036(62) GA resolution of 48/88 of 20 December 1993, p. 1189(73) GA resolution 52/215 A of 20 January 1998, p. 1037(67) GA resolution 46/221 of 20 December 1992, p. 1037(67) GA resolution 48/223 of 23 December 1993, p. 1037(67) UN document, A/46/915, Annex I, p. 1033(56) UN document, A/46/915, Annex II, p. 1033(57) UN document A/47/474, p. 1035(60) UN document A/47/485, p. 1036(61), 1038(69), 1040(73) UN document S/RES/1326, p. 1041(75) A/47/11, p. 1038(67)

320

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Sources of Law (cont.) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 1054(109) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 1054(111) SC resolution 757(1992), p. 1032(48), 1034(57, 58) SC resolution 777(1992), p. 1032(48), 1035(58), 1035(60), 1036(62), 1037(64), 1041(73), 1042(74, 76), SC resolution 713(1991), p. 1034(58) SC resolution 9 of 1946, p. 1046(91) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 1053(108) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 1053(108), UN document ST/LEG/8, p. 1039(70) A/50/910-S/1996/231, p. 1039(70) A/51/95-S/1996/251, p. 1039(70) A/50/928-S/1996/263, p. 1039(70) A/50/930-S/1996/260, p. 1039(70) A/53/992, p. 1039(71) A/55/528-S/2000/1043, p. 1041(74) GA resolution 55/12 of 1 November 2000, p. 1041(75), 1045(87) C.N.311.1999.TREATIES-1, p. 1039(71) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 1050 (102) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 1053(108) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 1017(11) Letter of 5 February 2001 of the Agent of Netherlands, p. 1016(11) Letter of 28 February 2003 of the Agent of the Serbia and Montenegro, p. 1017(14), 23 December 2003 Letter of the Registrar of the Court, p. 1018(17)



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321

Sources of Law (cont.) Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 1043(84) 16 January 2003 letter of the Agent of the Netherlands, p. 1017(14) Letter of 27 February 2004 of the Agent of Serbia and Montenegro, p. 1018(18), 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 1022(24), 1033(55) Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the UN, p. 1038(69) Letter of 25 September 1992 of the PR Bosnia, Herzegovina and Croatia to the UN Secretary-General, p. 1035(60) 29 September 19992 Letter of the Under-Secretary-General and Legal Counsel of the UN to the PR of Bosnia and Herzegovina and Croatia, p. 1035(61) 27 October 2000 Letter of President of FR Yugoslavia to the UN Secretary-General, p. 1041(74)

Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.L.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerie, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,

Assistants

Mr. Slavoljub Carie, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradovie, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetkovie, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro,

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Serbia (cont.) Ms. Marijana Santrac, LL.B., M.A. (Central European University), Ms. Dina Dobrkovie, LL.B., Technical Assistant

Mr. Vladimir Sreckovic, Ministry of Foreign Affairs of Serbia and Monte­negro

Netherlands Agent

Mr. J. G. Lammers, Legal Adviser of the Ministry of Foreign Affairs, as Agent;

Co-Agent

Mr. N. M. Blokker, Legal Counsel of the Ministry of Foreign Affairs

CASE CONCERNING LEGALITY OF USE OF FORCE (Serbia v. Portugal) General List No.: 111 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;

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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbs and other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948

Legality of Use of Force (Serbia v. Portugal)



325

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003 – Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 4. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Official citation: Legality of Use of Force (Yugoslavia v. Portugal), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 656 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 840, para. 43) THE COURT, (1) By twelve votes to three, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fourteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća AGAINST: Judge Oda Declarations/Opinions Dissenting Opinion

Judge ad hoc Kreća



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327

Sources of Law UN Charter

UN Charter, p. 664(17, 18), 671(49) Art. 33, p. 671(47) Chapter VII, p. 671(49) Art. 53(1), p. 658(3)

ICJ Statute

ICJ Statute, p. 664(17) Art. 31, p. 661(12) Art. 36(2), p. 657(2), 664(21, 22), 665(23), 667(29) Art. 40(3), p. 661(11) Art. 41, p. 656 Art. 48, p. 656

ICJ Rules of Court

Art. 35(3), p. 661(12) Art. 38(4), p. 661(9) Art. 42, p. 661(11) Art. 73, p. 656, 660(5) Art. 73(2), p. 661(9) Art. 74, p. 656 Art. 74(3), p. 661(10) Art. 75(1), p. 661(8)

PCIJ case-law

Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p.23], p. 667(29)

ICJ case-law

Current Order of 13 September 1993, p. 670(39) Previous East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 664(19), 667(27) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 670(39) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 669(37) Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 34], p. 666(25) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 453(44)], p. 667(29) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Judgment of 11 June 1998, [I.C.J. Reports 1998, p. 298(43)], p. 553(30)

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Sources of Law (cont.) Treaties

1948 Genocide Convention of 9 December 1948, p. 657(2, 3), 662(14), 668(33), 669(35, 36, 37), 670(38, 39) 1948 Danube Convention, p. 658(3) 1966 International Covenant on Civil and Political Rights, p. 658(3) 1966 International Covenant on Economic, Social and Cultural Rights, p. 658(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 658(3) 1978 Vienna Convention on the Succession of States in respect of Treaties, p. 556(43)

UN Resolutions

SC Resolution 9 of 15 October 1946, p. 667(30) SC Resolution 757 (1992) of 30 May 1992, p. 667(30) SC Resolution 777 (1992) of 19 September 1992, p. 667(30) GA Resolution 47/1 of 22 September 1992, p. 668(30, 31) GA Resolution of 48/88 of 20 December 1993, p. 667(30)

UN documents

A/47/485, p. 668(31)

Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1160 Date of Judgment: 15 December 2004 Authoritative text: French Composition of the Court: President Shi; Vice-President Ranjeva; Judges ­Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations.



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Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its own conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­ cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursu­ ing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be estopped from continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of proceed­ings, subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FRY within and vis-a-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY

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as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis-a-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force. Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other

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States – In present case, having no jurisdiction, Court can make no finding on such matters. Text of the operative paragraph(s) (p. 1206, para. 119) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and ElarabY and Judge ad hoc Kreca

Sources of Law UN Charter

ICJ Statute

Art. 4, p. 1190(76), Art. 93(1), p. 1173(27), 1180(46), 1181(50) Art. 93(2), p. 1181(50), 1205(115) UN Charter, p. 1185(64), 1185(65), Art. 24(1), p. 1167(15) Art. 31, p. 1165(6) Art. 31(3), p. 1167(16) Art. 31(5), p. 1165(9), 1167(17) Art. 34, p. 1179(45) Art. 34(1), p. 1179(45) Art. 34(3), p. 1165(5) Art. 35, p. 1179(45), 1198(99) 1200(104), 1204(112, 113, 114, 115), 1206(117) Art. 35(1), p. 1173(27), 1179(45), 1180(46), 1181(50, 52), 1191(79), 1195(90), 1197(97), 1200(104), 1206(117) Art. 35(2), p. 1179(45), 1195(92), 1196(95, 96), 1197(96, 97, 98), 1198(99, 101, 102), 1200(103, 105), 1200(104), 1202(108, 111), 1205(115), 1206(117) Art. 36, p. 1179(45), 1198(99) Art. 36(1), p. 1200(103), Art. 36(2), p. 1164(1), 1171(23), 1173(27), 1174(44), 1180(47, 48), 1181(49), 301(50), 309(74) Art. 36(6), p. 1175(33, 34), Art. 37, p. 1198(99) Art. 40, p. 1178(44)

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Sources of Law (cont.) Art. 40(3), p. 1165(5) Art. 59, p. 1199(100) Art. 61, p. 1176(38), 1192(83, 84, 85, 86), 1194(89) Art. 61(1), p. 1194(88) Art. 61(2), p. 1193(84) Art. 63(1), p. 1165(5) ICJ Rules of Court

Art. 38, p. 1178(44) Art. 38(4), p. 1165(4) Art. 38(5), p. 1174(32) Art. 43, p. 1165(5) Art. 53(2), p. 1168(19) Art. 56, p. 1167(17, 18) Art. 73, p. 1165(2) Art. 73(2), p. 1165(4) Art. 79(1), p. 1166(10), 1191(81) Art. 79(3), p. 1166(10) Art. 89, p. 1174(30, 31) Art. 88, p. 1174(31)

PCIJ case-law

Wimbeldon, 1923, p. 6, p. 1197(96), 1202(111), Upper Silesia, 1925, no. 6, p. 1202(111)

ICJ case-law

Current Order of 8 April 1993, p. 1179(46), 1190(77), 1197(96, 98), 1199(100, 101), 316(95), 317(97, 98), 318(99) Order of 2 June 1999, p. 1165(7), 1174(32), 1180(47), 1181(48), 1189(73), 1189(73), 1196(93), 1206(117), Order of 30 June 1999, p. 1165(8), 309(74) Order of 8 September 2000, p. 1166(10) Order of 21 February 2001, p. 1166(11) Order of 20 March 2002, p. 1166(12) [I.C.J Reports 1996 (II), p. 623], p. 1176(38), 1192(81, 82), 1197(96) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 1174(31), 1200(103), 327(125) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 1175(33), 1176(37) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 1175(33) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 1175(33)



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Sources of Law (cont.) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 1206(118), Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 595], p. 296(39), 313(86) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 1176(38), 1181(53), 1187(67), 1188(70, 72), 1188(72), 1191(79), 1192(82), 1193(85, 87), Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 1174(44), Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 1174(44), Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 1174(44), Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 1174(44), Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 1174(44), Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 1174(44), Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 1174(44), 1206(118), Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 1199(100) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 1200(103),

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Sources of Law (cont.) Treaties

1948 Genocide Convention of 9 December 1948, p. 1164(1), 1165(5), 1170(22), 1171(23), 1173(27, 28), 1177(40, 41, 42), 1180(48), 1191(80, 81), 1192(82), 1193(83, 86), 1195(92, 93), 1196 (94, 95), 1197(96), 1199(100), 1205(116), 324(114), 326(122) 1969 Vienna Convention on the Law of Treaties, p. 1196(94), 1199(102), 1202(111), 1922 Convention relating to Upper Silesia, p. 1202(111) 1919 Treaty of Versailles, p. 1201(106), 321(109) 1930 Convention of Conciliation, Judicial Settlement and Arbitration between Yugoslavia and Belgium of 3 September 1930, p. 284(7), 298(45), 324(115), 325(116, 117, 118, 119), 326(121), 327(126)

UN Resolutions

UN GA 47/1 of 22 September 1992, p. 1181(48), 1183(59), 1184(60, 61), 1185(61), 1186(65), 1187(69), 1188(70), 1189(73), 1193(87), GA resolution 47/229, p. 1185(62) GA resolution of 48/88 of 20 December 1993, p. 1189(73) GA resolution 49/19 B of 23 December 1994, p. 1187(67) GA resolution 52/215 A of 20 January 1998, p. 1187(67) GA resolution 46/221 of 20 December 1992, p. 1186(67) GA resolution 48/223 of 23 December 1993, p. 1186(67) UN document, A/46/915, Annex I, p. 302(57) UN document, A/46/915, Annex II, p. 302(57) UN document S/RES/777, p. 310(75) Note Verbale of 16 February 1999, p. 1196(93) UN document A/47/474, p. 1184(60) UN document A/47/485, p. 1185(61), 1187(69), 1189(73) UN document S/RES/1326, p. 1190(75) A/47/11, p. 1186(67) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 1203(112) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 1204(112) SC resolution 757(1992), p. 1183(57, 58) SC resolution 777(1992), p. 1180(48), 1183(58), 1184(60), 1186(64), 1189(73), 1190(74, 76), SC resolution 713(1991), p. 303(58)



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Sources of Law (cont.) SC resolution 821(1993), p. 1180(48), 1185(62), 1189(73) SC resolution 9 of 1946, p. 1195(91), 1199(99) Official Note by the Permanent Mission of Yugoslavia to the UN, p. 456(68) 8 December 2000 Letter from the USG and Legal Counsel to the Minister of Foreign Affairs of the FR Yugoslavia, p. 461(83) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 1203(111) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 1203(111), UN document ST/LEG/8, p. 1188(70) A/50/910-S/1996/231, p. 1188(70) A/51/95-S/1996/251, p. 1188(70) A/50/928-S/1996/263, p. 1188(70) A/50/930-S/1996/260, p. 1188(70) A/53/992, p. 1188(71) A/55/528-S/2000/1043, p. 1190(74) GA resolution 55/12 of 1 November 2000, p. 1190(75), 1194(87) C.N.311.1999.TREATIES-1, p. 1188(71) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 319(102) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 1201(105) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 1166(11) Letter of 5 July 2000 of the Agent of Portugal, p. 1165(9) Letter of 10 March 2000 of the Minister of Foreign Affairs of Portugal to the Court, p. 1165(9) Letter of 24 April 2000 of the Agent of the FR Yugoslavia, p. 1165(9) Letter of 12 May 1999 of the Agent of Serbia and Montenegro, p. 324(115) Letter of 1 February 2001 of the Agent of Portugal, p. 1166(11)

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Sources of Law (cont.) Letter of 8 February 2002 of the Agent of the FR Yugoslavia, p. 1166(12), Letter of 28 February 2003 of the Agent of the FR Yugoslavia, p. 1166(14) Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 312(84) Letter of 25 February 2002 of the Agent of Portugal, p. 1166(12) Letter of 5 February 2003 of the Ambassador of FR Yugoslavia to the Netherlands, p. 1166(14) Letter of 16 January 2003 of the Agent of Portugal, p. 1166(13) Letter of 26 February 2004 of the Agent of Serbia and Montenegro, p. 287(19), Letter of 18 December 2003 of the Agent of Serbia and Montenegro, p. 1167(17) Letter of 27 February 2004 of the Agents of the Respondent States, p. 1167(18) 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 1182(55), 307(69) Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the UN, p. 1187(68)

Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.l.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerić, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

Counsel and advocate

Mr. Ian Brownlie, C.B.E., Q.c., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,

Assistants

Mr. Slavoljub Carić, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradovie, First Secretary, Embassy of Serbia and Montenegro, The Hague,



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Serbia (cont.) Mr. Vladimir Cvetković, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms. Marijana Santrač, LL.B., M.A. (Central European University), Ms Dina Dobrkovie, LL.B., Technical Assistant

Mr. Vladimir Srećković, Ministry of Foreign Affairs of Serbia and Monte­negro,

Portugal Agent

Mr. Luís Serradas Tavares, Director of the Department of Legal Affairs, Ministry of Foreign Affairs, Lecturer in Law at the University Lusíada,

Co-Agent

H.E. Mr. João Salgueiro, Ambassador of the Portuguese Republic to the Kingdom of the Netherlands,

Counsel & Advocate

Mr. Miguel Galvão Teles, from Miguel Galvão Teles, João Soares da Silva & Associados, member of the Portuguese Bar,

Counsel

Ms. Patrícia Galvão Teles, Consultant to the Department of Legal Affairs, Ministry of Foreign Affairs of Portugal, Professor of International Law at the Autonomous University of Lisbon,

Assistants

Mr. Luís de Barros, Counsellor at the Portuguese Embassy in The Hague, Ms. Filipa Marques Júnior, from Miguel Galvão Teles, João Soares da Silva & Associados,

LEGALITY OF USE OF FORCE (Yugoslavia v. Spain) General List No.: 112 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: The Federal Republic of Yugoslavia requests the Court to adjudge and declare: – by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by taking part in the training, arming, financing, equipping and supplying terrorist groups, i.e. the so-called “Kosovo Liberation Army”, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by taking part in attacks on civilian targets, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by taking part in destroying or damaging monasteries, monuments of culture, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by taking part in the use of cluster bombs, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by taking part in the bombing of oil refineries and chemical plants, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage;

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– by taking part in the use of weapons containing depleted uranium, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause farreaching health and environmental dart-rage; – by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by taking part in destroying bridges on international rivers, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect freedom of navigation on international rivers; – by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Kingdom of Spain has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – The Kingdom of Spain is responsible for the violation of the above international obligations; – The Kingdom of Spain is obliged to stop immediately the violation of the above obligations vis-a-vis the Federal Republic of Yugoslavia; – The Kingdom of Spain is obliged to provide compensation for the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. The Federal Republic of Yugoslavia reserves the right to submit subsequently accurate evaluation of the damage. Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute and the Genocide Convention. Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

29 April 1999 to 2 June 1999

Provisional Measures

29 April 1999 to 2 June 1999

Public sittings Between 10 to 12 May 1999

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Orders Date of Order and Authority 2 June 1999 Court – Vice-President (Acting President) Weeramantry

Content Please refer Section B

Section B – Provisional Measures Official citation: Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 761 Date of order: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry, (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Torres Bernardéz, Kreća; Registrar Valencia-Ospina. Text of the operative paragraph(s) (p. 773, para. 40) The Court, (1) By fourteen votes to two, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Torres Bernardéz, Kreća AGAINST: Judges Shi, Vereshchetin (2) By thirteen votes to three, Orders that the case be removed from the List. IN FAVOUR: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleisch­ hauer, Koroma, Higgins, Kooijmans; Judge ad hoc Torres Bernárdez AGAINST: Judges Vereshchetin, Parra-Aranguren; Judge ad hoc Kreća



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Declarations/Opinions Declaration

Judges Shi, Koroma and Vereshchetin

Separate Opinion

Judges Oda, Higgins, Parra-Aranguren and Kooijmans and Judge ad hoc Kreća

Sources of Law UN Charter

Art. 53(1), p. 762–763(3) Chapter VII, p. 773(39) UN Charter, p. 768(17, 18)

ICJ Statute

Art. 31, p. 767(12) Art. 31(5), p. 767(12) Art. 36(2), p. 762(2), 768(21), 769(22), 770(23), 770–771(26) Art. 36(4), p. 769–770(22) Art. 40(3), p. 766(11) Art. 41, p. 761 Art. 48, p. 761

ICJ Rules of Court

Art. 35(3), p. 767(12) Art. 38(5), p. 772(34) Art. 38(4), p. 766(9) Art. 42, p. 766(11) Art. 73, p. 761, 765(5) Art. 73(2), p. 766(9) Art. 74, p. 761 Art. 74(3), p. 766(10) Art. 75(1), p. 766(8)

PCIJ case-law

Phosphates in Morocco, [P.C.I.J., Series A/B, No. 74, p. 23], p. 770–771(25)

ICJ case-law

East Timor, [I.C.J. Reports 1995, p. 101(26)], p. 768(19) Anglo-Iran Oil Co., [I.C.J. Reports 1952, p. 103], p. 770–771(25) Fisheries Jurisdiction (Spain v. Canada), [I.C.J. Reports 1998, p. 453(44)], p. 770–771(25) Land and Maritime Boundary between Cameroon and Nigeria, [I.C.J. Reports 1998, p. 298(43)], p. 770–771(25)

UN resolutions

General Assembly 47/1 of 22 September 1992, p. 771(26, 27)

Treaties

Genocide Convention of 9 December 1948, p. 762(2), 772(29, 30, 31, 32, 33) 1948 Convention on Free Navigation on the Danube, p. 762–763(3) Geneva Convention of 1949, p. 762–763(3) Additional Protocol No. 1 of 1977, p. 762–763(3)

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Sources of Law (cont.) International Covenant on Civil and Political Rights, p. 762–763(3) International Covenant on Economic, Social and Cultural Rights of 1966, p. 762–763(3) Declaration

Declaration of Yugoslavia accepting the compulsory jurisdiction of the Court of 26 April 1999, p. 768–769(21), 769(22), 770(25) Declaration of Spain accepting the compulsory jurisdiction of the Court of 29 October 1990, p. 768–769(21), 769(22)

UN documents

UN Secretariat A/47/485, p. 771(27)

CASE CONCERNING LEGALITY OF USE OF FORCE (Serbia v. United Kingdom) General List No.: 113 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: “The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: – by the bombing of the territory of the Federal Republic of Yugoslavia, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by using force against the Yugoslav army and police during their actions against terrorist groups, i.e. the so-called ‘Kosovo Liberation Army’, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by attacks on civilian targets, and by inflicting damage, injuries and losses to civilians and civilian objects, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by destroying or damaging monasteries, monuments of culture, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by the use of cluster bombs, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by the bombing of oil refineries and chemical plants, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage; – by the use of weapons containing depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;

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– by killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by destroying bridges on international rivers, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect State sovereignty; – by activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – by failures to prevent killing, wounding and ethnic cleansing of Serbs and other non-Albanian groups in Kosovo and Metohija, the Respondent has acted against the Federal Republic of Yugoslavia in breach of its obligations to ensure public safety and order in Kosovo and Metohija and to prevent genocide and other acts enumerated in Article III of the Genocide Convention; – the Respondent is responsible for the violation of the above international obligations; – the Respondent is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; – the Respondent is obliged to provide compensation for the damages, injuries and losses done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. “For the reasons given in its pleadings, and in particular in its Written Observations, subsequent correspondence with the Court, and at the oral hearing, Serbia and Montenegro requests the Court: – to adjudge and declare on its jurisdiction ratione personae in the present cases; and – to dismiss the remaining preliminary objections of the respondent States, and to order proceedings on the merits if it finds it has jurisdiction ratione personae.” Basis of jurisdiction invoked: Article 36(2) ICJ Statute and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948

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Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

29 April 1999–15 December 2004

19 to 23 April 2004

Provisional Measures

29 April 1999 to 2 June 1999

10 and 12 May 1999

Preliminary Objections

4 July 2000–15 December 2004

Orders Date of Order and Authority

Content

2 June 1999 Court – Vice-President Weeramantry (Acting President)

Pls refer to Section B

30 June 1999 Court – Vice-President Weeramantry (Acting President)

Fixing of time-limits: 5 January 2000 – Memorial of FR Yugoslavia 5 July 2000 – Counter-Memorial of UK

8 September 2000 Vice-President Shi (Acting President)

Submission of written statement of observations and submissions on the preliminary objections raised by the UK: 5 April 2001 – Written statement of FR Yugoslavia

21 February 2001 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2001 to 5 April 2002 – Written statement of FR Yugoslavia

20 March 2002 Court – Vice-President Shi (Acting President)

Extension of time-limits: From 5 April 2002 to 7 April 2003 – Written statement of FR Yugoslavia

Request for extension of time-limits State Party FR Yugoslavia (2 times)

Remarks 5. Request for filing of Submission of Observations to be extended by 12 months, i.e. 5 April 2002 and 5 April 2003

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Official citation: Legality of Use of Force (Yugoslavia v. United Kingdom), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 826 Date of Judgment: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća; Registrar Valencia-Ospina Text of the operative paragraph(s) (p. 840, para. 43) THE COURT, (1) By twelve votes to three, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By fourteen votes to one, Reserves the subsequent procedure for further decision. IN FAVOUR: Vice-President Weeramantry, Acting President; President Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća AGAINST: Judge Oda Declarations/Opinions Dissenting Opinion

Judge ad hoc Kreća



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Sources of Law UN Charter

UN Charter, p. 833(17, 18), 671(49) Art. 33, p. 839(40) Chapter VII, p. 839(42) Art. 53(1), p. 658(3)

ICJ Statute

ICJ Statute, p. 833(17) Art. 31, p. 832(12) Art. 36(2), p. 827(2), 833(21), 834(22), 835(23) Art. 40(3), p. 832(11) Art. 41, p. 826 Art. 48, p. 826

ICJ Rules of Court

Art. 35(3), p. 832(12) Art. 38(4), p. 831(9) Art. 42, p. 832(11) Art. 73, p. 826, 830(5) Art. 73(2), p. 831(9) Art. 74, p. 826 Art. 74(3), p. 831(10) Art. 75(1), p. 831(8)

PCIJ case-law

Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p.23], p. 836(25)

ICJ case-law

Current Order of 13 September 1993, p. 838(33) Previous East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 101(26)], p. 833(19) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996(I), p. 240(26)], p. 839(35) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II) p. 810(16)], p. 838(33) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 453(44)], p. 836(25) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Judgment of 11 June 1998, [I.C.J. Reports 1998, p. 298(43)], p. 836(25)

Treaties

1948 Genocide Convention of 9 December 1948, p. 827(2, 3), 836(29), 837 (30, 31), 838 (32, 33, 34, 35), 839(36, 38) 1948 Danube Convention, p. 828(3) 1966 International Covenant on Civil and Political Rights, p. 828(3)

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Sources of Law (cont.) 1966 International Covenant on Economic, Social and Cultural Rights, p. 828(3) 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 828(3) 1978 Vienna Convention on the Succession of States in respect of Treaties, p. 556(43) UN Resolutions

SC Resolution 9 of 15 October 1946, p. 836(26) SC Resolution 757 (1992) of 30 May 1992, p. 836(26) SC Resolution 777 (1992) of 19 September 1992, p. 836(26) GA Resolution 47/1 of 22 September 1992, p. 836(26, 27) GA Resolution of 48/88 of 20 December 1993, p. 836(30)

UN documents

A/47/485, p. 836(27)

Section C – Preliminary Objections Official citation: Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1307 Date of Judgment: 15 December 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges ­Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Kreća; Registrar Couvreur. Headnotes: Case one of eight similar cases brought by the Applicant – Court to consider arguments put forward in this case as well as any other legal issue, including issues raised in other seven cases. Contentions by Respondents that case should be dismissed in limine litis as a result of Applicant’s changed attitude to Court’s jurisdiction in its Observations. Whether Applicant’s changed attitude amounts to discontinuance – Appli­cant expressly denied notice of discontinuance and wants the Court to decide upon its jurisdiction – Court unable to treat Observations as having legal effect of discontinuance – Court has power, ex officio, to put an end to a case in interests of proper administration of justice – Not applicable in present case. Whether Applicant’s position discloses substantive agreement on jurisdiction resulting in absence of dispute for purposes of Article 36, paragraph 6, of



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Statute – Distinction to be drawn between question of jurisdiction and right of party to appear before the Court under the Statute – Latter not a matter of consent – Court must reach its olvn conclusion. Court cannot decline to entertain case because of a suggestion as to motives of one of the parties or because its judgment may have influence in another case. Whether, in light of Applicant’s contention that it was not party to the Geno­ cide Convention until March 2001, the substantive dispute with the Respondent in so far as jurisdiction is founded on that Convention, has disappeared – Con­tention that Applicant has forfeited right of action and is estopped from pursu­ ing the proceedings – No withdrawal of claims as to merits – Applicant cannot be held to have renounced its rights or to be estoppedfrom continuing the action. Court cannot dismiss case in limine litis. Questions of jurisdiction – Court’s “freedom to select the ground upon which it will base its judgment” – Distinction between present proceedings and other cases – Applicant’s right of access to Court under Article 35, paragraph 1, of Statute, challenged – If not party to Statute at time of institution of proceed­ings, subject to application of Article 35, paragraph 2, Applicant had no right to appear before Court – Court must determine whether Applicant meets condi­tions laid down in Articles 34 and 35 of Statute before examining conditions in Article 36 of Statute. Break-up of Socialist Federal Republic of Yugoslavia in 1991–1992 – Dec­laration of 27 April 1992 and Note of same date from Permanent Representa­tive of Yugoslavia to the United Nations, addressed to Secretary-General ­Security Council resolution 757 of 30 May 1992 – Security Council resolu­tion 777 of 19 September 1992 – General Assembly resolution 47/1 of 22 Sep­tember 1992 – Legal Counsel’s letter of 29 September 1992 regarding “prac­tical consequences” of General Assembly resolution 47/1 – General Assembly resolution 47/229 of 29 April 1993. Complexity and ambiguity of legal position of FRY within and vis-a-vis the United Nations during the period 1992–2000 – Absence of authoritative deter­ mination by competent United Nations organs. Different positions taken within United Nations – Positions of Security Council and General Assembly – Resolution 777 (1992) and resolution 47/1 cannot be construed as conveying an authoritative determination of FRY’s legal status – Position of FRY – Maintained claim of continuity of legal personal­ity of SFRY as stated in Note of 27 April 1992 – Position of Secretariat ­Adherence to practice prevailing prior to break-up of SFRY pending authorita­tive determination of FRY’s legal status. Reference by Court to “sui generis” position of FRY in Judgment of 3 Feb­ruary 2003 in Application for Revision case – Term not prescriptive but merely descriptive of amorphous situation – No conclusion drawn by Court as to status of FRY vis -a-vis the United Nations in 2003 Judgment or in incidental proceedings in other cases including Order on provisional measures in present case. FRY’s sui

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generis position came to end with admission to United Nations on 1 November 2000 – Admission did not have effect of dating back – New devel­opment clarified amorphous legal situation – Situation faced by Court mani­festly different from that in 1999 – Applicant was not a Member of United Nations, hence not party to Statute, on 29 April 1999 when it filed Application. Court not open to Applicant, at date of filing of Application, under Article 35, paragraph 1, of Statute. Question whether Court open to Applicant under Article 35, paragraph 2, of Statute – Contention by certain Respondents that Applicant may not rely on this text – Appropriate for Court to examine question. Scope of Article 35, paragraph 2 – Determination by Court in provisional measures Order of April 1993 in Genocide Convention case that Article IX of the Genocide Convention “could . . . be regarded prima facie as a special provi­sion contained in a treaty in force” – Contentions by certain Respondents that “treaties in force” relates only to treaties in force when Statute came into force. Natural and ordinary meaning allows two different interpretations: treaties in force at time when Statute came into force and treaties in force at date of insti­ tution of proceedings – Object and purpose of Article 35 is to define conditions of access to Court: natural to reserve position in relation to treaties that might then exist, not to allow States to obtain access to Court by conclusion between themselves of any special treaty – First interpretation reinforced by examina­tion of travaux preparatoires – Substantially same provision in PCIJ Statute intended to refer to special provisions in Peace Treaties concluded after First World War – No discussion in travaux preparatoires of ICJ Statute to suggest that exten­sion of access to Court intended. Genocide Convention came into force after Statute – Not “treaty in force” within meaning of Article 35, paragraph 2 – Unnecessary to decide whether Applicant was party to Genocide Convention on 29 April 1999. In view of Court’s conclusion of lack of access to Court under either para­ graph 1 or paragraph 2 of Article 35 of Statute, unnecessary for Court to con­sider Respondents’ other preliminary objections. Distinction between existence of jurisdiction and compatibility of acts with international law – Irrespective of whether Court has jurisdiction, Parties remain responsible for acts attributable to them that violate the rights of other States – In present case, having no jurisdiction, Court can make no finding on such matters.

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Text of the operative paragraph(s) (p. 1352, para. 115) THE COURT, Unanimously, Finds that it has no jurisdiction to entertain the claims made in the Application filed by Serbia and Montenegro on 29 April 1999. Declarations/Opinions Joint Declaration

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

Declaration

Judge Koroma

Separate Opinions

Judges Higgins, Kooijmans and Elaraby and Judge ad hoc Kreca

Sources of Law UN Charter

Art. 4, p. 1332(60), 1347(75) Art. 93(1), p. 1319(26), 1326(45) Art. 93(2), p. 1328(49), 1350(110) UN Charter, p. 1332(63), 1332(64),

ICJ Statute

Art. 24(1), p. 1313(14) Art. 31, p. 1312(6) Art. 31(5), p. 1314(16) Art. 34, p. 1326(44) Art. 34(1), p. 1326(44) Art. 34(3), p. 1312(5) Art. 35, p. 1326(44), 1344(95) 1345(100), 1349(108, 109), 1350(110, 111) Art. 35(1), p. 1319(26), 1326(44, 45), 1328(51), 11328(51), 1338(78), 1341(89), 1343(93), 1345(100), 1351(113) Art. 35(2), p. 1326(44), 1341(90), 1342(91, 92), 1343(93, 94, 95), 1345(97, 100), 1346(101), 1346(101, 104), 1348(107), 1349(109, 111), 1350(111), 1351(112, 113) Art. 36, p. 1326(44), 1344(95) Art. 36(1), p. 1345(99), Art. 36(2), p. 1311(1), 1171(23), 1173(27), 1325(43), 1327(46, 47), 1327(47, 48), 1336(72), Art. 36(6), p. 1322(33), Art. 37, p. 1344(95) Art. 40, p. 1325(43) Art. 40(3), p. 1312(5) Art. 59, p. 1344(96) Art. 61, p. 1323(37), 1338(81, 82, 83, 86), 1341(87), 1341(87) Art. 61(1), p. 1341(87) Art. 61(2), p. 1340(83) Art. 63(1), p. 1312(5)

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Sources of Law (cont.) ICJ Rules of Court

Art. 38, p. 1325(43) Art. 38(4), p. 1312(4) Art. 38(5), p. 1321(31) Art. 47, p. 1314(15) Art. 43, p. 1312(5) Art. 53(2), p. 1314(18) Art. 56, p. 1314(16, 17) Art. 56(1), p. 1314(17) Art. 73, p. 1311(2) Art. 73(2), p. 1312(4) Art. 79(1), p. 1312(10), 1338(80) Art. 79(3), p. 1312(10) Art. 88, p. 1321(30) Art. 89, p. 1321(29, 30) Art. 99, p. 1340(83)

PCIJ case-law

Wimbledon, 1923, p.6, p. 1342(92), 1348(107), Upper Silesia, 1925, no. 6, p. 1348(107)

ICJ case-law

Current Order of 8 April 1993, p. 1326(44), 1337(76), 1342(92) 1343(94), 1344(967, 97) Order of 2 June 1999, p. 1312(7), 1321(31), 1327(46), 1351(114), Order of 30 June 1999, p. 1312(8), 1336(72) Order of 8 September 2000, p. 1312(9) Order of 21 February 2001, p. 1312(11) Order of 20 March 2002, p. 1313(11) [I.C.J Reports 1996 (II), p. 623], p. 1323(37), 1338(80, 81), 1342(92) Previous Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, [I.C.J. Reports 1964, p. 20], p. 1321(30), 1345(99) Northern Cameroons, [I.C.J. Reports 1963, p. 63(34)], p. 1322(32), 1323(36) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 271(57)], p. 1322(32), Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(60)], p. 1322(32), Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 432], p. 1351(114),



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353

Sources of Law (cont.) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 7], p. 1323(37), 1328(52), 1187(67), 1335(71), 1338(78), 1340(84) Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: [I.C.J. Reports 1958, p. 62], p. 1325(44), Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 207(29)], p. 1325(44), Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, [I.C.J. Reports 2003 p. 180(37)], p. 1325(44), Certain Norwegian Loans, Judgment of July 6th, 1957: [I.C.J. Reports 1957, p. 25], p. 1325(44), Aerial Incident of July 27th, 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment of May 26th, 1959: [I.C.J. Reports 1959, p. 127], p. 1325(44), Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 1325(44), Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, [I.C.J. Reports 2000, p. 24(26)], p. 1325(44), 1351(114), Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 292(28)], p. 1344(96) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgments, [I.C.J. Reports 1998, p. 16(19)], p. 1345(99), Treaties

1948 Genocide Convention of 9 December 1948, p. 1311(1), 1312(5), 1318(22, 23), 1319(26), 1324(39, 40, 41), 1327(46, 47), 1338(79, 80), 1339(82), 1340(85, 86), 1342(91, 92), 1351(112) 1969 Vienna Convention on the Law of Treaties, p. 1345(98) 1922 Convention relating to Upper Silesia, p. 1348(107) 1919 Treaty of Versailles, p. 1346(102), 1348(107)

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Sources of Law (cont.) UN Resolutions

UN GA 47/1 of 22 September 1992, p. 1327(47), 1330(58), 1331(59, 60), 1333(64), 1334(68, 69), 1336(72), 1340(86), GA resolution 47/229, p. 1332(61) GA resolution 49/19 B of 23 December 1994, p. 1333(66) GA resolution 52/215 A of 20 January 1998, p. 1333(66) GA resolution 46/221 of 20 December 1992, p. 1333(66) GA resolution 48/223 of 23 December 1993, p. 1333(66) UN document, A/46/915, Annex I, p. 1329(55) UN document, A/46/915, Annex II, p. 1329(54) UN document A/47/474, p. 1331(59) UN document A/47/485, p. 1332(60), 1334(68), 1336(72) UN document S/RES/1326, p. 1337(74) A/47/11, p. 1333(66) Documents of the UN Conference on the International Organisation, Vol. XIV, p. 141–145, p. 1349(108) Documents of the UN Conference on the International Organisation, Vol. XIII, p. 484, p. 1350(110) SC resolution 757(1992), p. 1329(56), 1330(57) SC resolution 777(1992), p. 1327(47), 1330(57), 1331(59), 1332(63), 1336(72), 1336(73), 1337(75) SC resolution 713(1991), p. 1330(57) SC resolution 821(1993), p. 1332(61) SC resolution 9 of 1946, p. 1342(90), 1344(95) Annual report of the PCIJ, 1 January 1922–15 June 1925, PCIJ Series No. 1, p. 261, p. 1348(107) Acts and Documents (1926), PCIJ Series D, No. 2, Add. p. 106, p. 1348(107), UN document ST/LEG/8, p. 1334(69) A/50/910-S/1996/231, p. 1335(69) A/51/95-S/1996/251, p. 1335(69) A/50/928-S/1996/263, p. 1335(69) A/50/930-S/1996/260, p. 1335(69) A/53/992, p. 1335(70) A/55/528-S/2000/1043, p. 1336(73)



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Sources of Law (cont.) GA resolution 55/12 of 1 November 2000, p. 1337(74), 1340(86) C.N.311.1999.TREATIES-1, p. 1335(70) Art. 32 of draft text of PCIJ statute of 1920 Committee of Jurists, p. 1346(101) League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 78, p. 1346(101) Inter(national) legal references

Letter of 18 January 2001 of the Minister for Foreign Affairs of FR Yugoslavia, p. 1312(10) Letter of 26 January 2001 of the Agent of UK, p. 1312(10) Letter of 8 February 2002 of the Agent of the FR Yugoslavia, p. 1313(11), Letter of 22 February 2002 of the Agent of the UK, p. 1313(11) Letter of 8 December 2000 of the UN Under Secretary-General to the Foreign Minister of FR Yugoslavia, p. 1339(82) Letter of 5 February 2003 of the Ambassador of FR Yugoslavia to the Netherlands, p. 1313(13) Letter of 17 January 2003 of the Agent of the UK, p. 1313(12) Letter of 28 February 2003 of the Agent of Serbia and Montenegro, p. 1313(13), Letter of 27 February 2004 of the Agents of the Respondent States, p. 1314(17) 23 December 2003 Letter of the ICJ Registrar, p. 1314(16) 27 April 1992 Promulgation of the Constitution of the Federal Republic of Yugoslavia by the Assembly of the SFRY Yugoslavia, p. 1318(23), 1328(54) 27 October 2000 Letter of FR Yugoslavia President, p. 1336(73)

Representation of Parties Serbia Agent, Counsel and Advocate

Mr. Tibor Varady, S.l.D. (Harvard), Chief Legal Adviser at the Ministry of Foreign Affairs of Serbia and Montenegro, Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent, Counsel and Advocate

Mr. Vladimir Djerie, LL.M. (Michigan), Adviser to the Minister for Foreign Affairs of Serbia and Montenegro,

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Serbia (cont.) Counsel and advocate

Mr. Ian Brownlie, C.B.E., Q.c., F.B.A., Chichele Professor of Public Inter­national Law (Emeritus), University of Oxford, Member of the Inter­national Law Commission, member of the English Bar, member of the Institut de droit international,

Assistants

Mr. Slavoljub Carie, Counsellor, Embassy of Serbia and Montenegro, The Hague, Mr. Sasa Obradovie, First Secretary, Embassy of Serbia and Montenegro, The Hague, Mr. Vladimir Cvetkovie, Third Secretary, International Law Department, Ministry of Foreign Affairs of Serbia and Montenegro, Ms. Marijana Santrac, LL.B., M.A. (Central European University), Ms Dina Dobrkovie, LL.B.,

Technical Assistant

Mr. Vladimir Sreekovie, Ministry of Foreign Affairs of Serbia and Monte­negro,

United Kingdom Agent

Sir Michael Wood, K.C.M.G., Legal Adviser to the Foreign and Common­wealth Office,

Deputy Agents

Mr. Chanaka Wickremasinghe, Legal Adviser to the Foreign and Common­wealth Office, Mr. Dominic Raab, First Secretary, Embassy of the United Kingdom of Great Britain and Northern Ireland, The Hague,

Counsel

Mr. Christopher Greenwood, C.M.G., Q.C., Professor of International Law, London School of Economics and Political Science, member of the EnglishBar,

Adviser

Mr. David Burton, Embassy of the United Kingdom of Great Britain andNorthern Ireland, The Hague,

LEGALITY OF USE OF FORCE (Yugoslavia v. USA) General List No.: 114 Mean(s) and date of institution of the case: Application (29 April 1999) Statement of claim/question: Yugoslavia asks the Court to adjudge and declare – by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State; – by taking part in the training, arming, financing, equipping and supplying terrorist groups, i.e. the so-called “Kosovo Liberation Army”, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State; – by taking part in attacks on civilian targets, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects; – by taking part in destroying or damaging monasteries, monuments of culture, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people; – by taking part in the use of cluster bombs, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering; – by taking part in the bombing of oil refineries and chemical plants, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage;

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– by taking part in the use of weapons containing depleted uranium, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage; – by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights; – by taking part in destroying bridges on international rivers, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect freedom of navigation on international rivers; – by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the United States of America has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part; – The United States of America is responsible for the violation of the above international obligations; – The United States of America is obliged to stop immediately the violation of the above obligations vis-a-vis the Federal Republic of Yugoslavia; – The United States of America is obliged to provide compensation for the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons. The Federal Republic of Yugoslavia reserves the right to submit subsequently accurate evaluation of the damage. Basis of jurisdiction invoked by the Applicant(s): Genocide Convention and Art. 38(5) of the Rules of Court; Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

29 April 1999 to 2 June 1999

Provisional Measures

29 April 1999 to 2 June 1999

Public sittings Between 10 and 12 May 1999



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Orders Date of Order and Authority 2 June 1999 Court – Vice-President (Acting President) Weeramantry

Content Please refer Section B

Section B – Provisional Measures Official citation: Legality of Use of Force (Yugoslavia v. USA), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 916 Date of order: 2 June 1999 Authoritative text: French Composition of the Court: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreća; Registrar Valencia-Ospina. Text of the operative paragraph(s) (p. 925, para. 34) The Court, (1) By twelve votes to three, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; IN FAVOUR: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kreća (2) By twelve votes to three, Orders that the case be removed from the List. IN FAVOUR: Vice-President Weeramantry (Acting President); President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleisch­ hauer, Koroma, Higgins, Kooijmans AGAINST: Judges Vereshchetin, Parra-Aranguren; Judge ad hoc Kreća

360

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Declarations/Opinions Declaration

Judges Shi, Koroma and Vereshchetin

Separate Opinion

Judges Oda, Parra-Aranguren

Dissenting Opinion

Judge ad hoc Kreća

Sources of Law UN Charter

Art. 33, p. 925(30) Art. 53(1), p. 917–918(3) Chapter VII, p. 925(33) UN Charter, p. 922(17), 923(18)

ICJ Statute

Art. 31, p. 921(12) Art. 40(3), p. 921(11) Art. 41, p. 916 Art. 48, p. 916

ICJ Rules of Court

Art. 35(3), p. 921–922(12) Art. 38(4), p. 921(9) Art. 38(5), p. 917(2), 924(26), 925(27, 28 Art. 73, p. 916, 920(5) Art. 73(2), p. 921(9) Art. 74, p. 916 Art. 74(3), p. 921(10) Art. 75(1), p. 921(8)

ICJ case-law

East Timor, [I.C.J. Reports 1995, p. 101(26)], p. 923(19)

Treaties

Genocide Convention of 9 December 1948, p. 917(2), 923(21), 924(23, 24, 25) 1948 Convention on Free Navigation on the Danube, p. 917–918(3) Geneva Convention of 1949, p. 917–918(3) Additional Protocol No. 1 of 1977, p. 917–918(3) International Covenant on Civil and Political Rights, p. 917–918(3) International Covenant on Economic, Social and Cultural Rights of 1966, p. 917–918(3)

CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (Democratic Republic of Congo v. Burundi) General List No.: 115 Mean(s) and date of institution of the case: Application (23 June 1999) Statement of claim/question: Democratic Republic of the Congo requests the Court to: Adjudge and declare that: (a) Burundi is guilty of an act of aggression within the meaning of Article 1 of resolution 3314 of the General Assembly of the United Nations of 14 December 1974 and of the jurisprudence of the International Court of Justice, contrary to Article 2, paragraph 4, of the United Nations Charter; (b) further, Burundi is committing repeated violations of the Geneva Conventions of 1949 and their Additional Protocols of 1977, in flagrant disregard of the elementary rules of international humanitarian law in conflict zones, and is also guilty of massive human rights violations in defiance of the most basic customary law; (c) more specifically, by taking forcible possession of the Inga hydroelectric dam, and deliberately and regularly causing massive electrical power cuts, in violation of the provisions of Article 56 of the Additional Protocol of 1977, Burundi has rendered itself responsible for very heavy losses of life among the 5 million inhabitants of the city of Kinshasa and the surrounding area; (d) by shooting down, on 9 October 1998 at Kindu, a Boeing 727 the property of Congo Airlines, thereby causing the death of 40 civilians, Burundi has also violated the Convention on International Civil Aviation signed at Chicago on 7 December 1944, the Hague Convention of 16 December 1970 for the Suppression of Unlawful Seizure of Aircraft and the Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

362 Armed Activities on the Territory of the Congo (DR Congo v. Burundi) Consequently, and pursuant to the aforementioned international legal obligations, to adjudge and declare that: (1)  all Burundian armed forces participating in acts of aggression shall forthwith vacate the territory of the Democratic Republic of the Congo; (2) Burundi shall secure the immediate and unconditional withdrawal from Congolese territory of its nationals, both natural and legal persons; (3) the Democratic Republic of the Congo is entitled to compensation from Burundi in respect of all acts of looting, destruction, removal of property and persons and other unlawful acts attributable to Burundi, in respect of which the Democratic Republic of the Congo reserves the right to determine at a later date the precise amount of the damage suffered, in addition to its claim for the restitution of all property removed. Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute; Art. 30(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, together with Art. 14(1) of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

23 June 1999 to 30 January 2001

Orders Date of Order and Authority

Content

21 October 1999 Court – President Schwebel

Decision that the written proceedings shall first be addressed to the questions of the jurisdiction of the Court to entertain the Application and of its admissibility and Fixing of time-limits: 21 April 2000 – Memorial of Burundi 23 October 2000 – Counter-Memorial of the Democratic Republic of the Congo

19 October 2000 President Guillaume

Extension of time-limits: From 23 October 2000 to 23 January 2001 – CounterMemorial of the Democratic Republic of Congo

30 January 2001 President Guillaume

Discontinuance of the proceedings and removal of the case from the List.



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Request for extension of time-limits State Party Democratic Republic of Congo (1 time)

Remarks Request to extend filing of Counter-Memorial not exceeding four months from the time-limit set by the order of 21 October 1999 – No objection by Burundi

ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (Democratic Republic of the Congo v. Uganda) General List No.: 116 Mean(s) and date of institution of the case: Application (23 June 1999) Statement of claim/question: “The Congo requests the Court to adjudge and declare: 1. That the Republic of Uganda, by engaging in military and paramilitary activities against the Democratic Republic of the Congo, by occupying its territory and by actively extending military, logistic, economic and financial support to irregular forces having operated there, has violated the following principles of conventional and customary law: – the principle of non-use of force in international relations, including the prohibition of aggression; – the obligation to settle international disputes exclusively by peaceful means so as to ensure that international peace and security, as well as justice, are not placed in jeopardy; – respect for the sovereignty of States and the rights of peoples to selfdetermination, and hence to choose their own political and economic system freely and without outside interference; – the principle of non-intervention in matters within the domestic jurisdiction of States, including refraining from extending any assistance to the parties to a civil war operating on the territory of another State. 2. That the Republic of Uganda, by committing acts of violence against nationals of the Democratic Republic of the Congo, by killing and injuring them or despoiling them of their property, by failing to take adequate measures to prevent violations of human rights in the DRC by persons under its jurisdiction or control, and/or failing to punish persons under its jurisdiction or control having engaged in the above mentioned acts, has violated the following principles of conventional and customary law: – the principle of conventional and customary law imposing an obligation to respect, and ensure respect for, fundamental human rights, including in times of armed conflict, in accordance with international humanitarian law;



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– the principle of conventional and customary law imposing an obligation, at all times, to make a distinction in an armed conflict between civilian and military objectives; – the right of Congolese nationals to enjoy the most basic rights, both civil and political, as well as economic, social and cultural. 3. That the Republic of Uganda, by engaging in the illegal exploitation of Congolese natural resources, by pillaging its assets and wealth, by failing to take adequate measures to prevent the illegal exploitation of there sources of the DRC by persons under its jurisdiction or control, and/or failing to punish persons under its jurisdiction or control having engaged in the abovementioned acts, has violated the following principles of conventional and customary law: – the applicable rules of international humanitarian law; – respect for the sovereignty of States, including over their natural resources; – the duty to promote the realization of the principle of equality of peoples and of their right of self-determination, and consequently to refrain from exposing peoples to foreign subjugation, domination or exploitation; – the principle of non-interference in matters within the domestic jurisdiction of States, including economic matters. 4. (a) That the violations of international law set out in submissions 1, 2 and 3 constitute wrongful acts attributable to Uganda which engage its international responsibility; (b) that the Republic of Uganda shall cease forthwith all continuing internationally wrongful acts, and in particular its support for irregular forces operating in the DRC and its exploitation of Congolese wealth and natural resources; (c) that the Republic of Uganda shall provide specific guarantees and assurances that it will not repeat the wrongful acts complained of; (d) that the Republic of Uganda is under an obligation to the Democratic Republic of the Congo to make reparation for all injury caused to the latter by the violation of the obligations imposed by international law and set out in submissions 1, 2 and 3 above; (e) that the nature, form and amount of the reparation shall be determined by the Court, failing agreement thereon between the Parties, and that the Court shall reserve the subsequent procedure for that purpose. 5. That the Republic of Uganda has violated the Order of the Court on provisional measures of 1 July 2000, in that it has failed to comply with the following provisional measures:

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‘(1) both Parties must, forthwith, prevent and refrain from any action, and in particular any armed action, which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve; (2) both Parties must, forthwith, take all measures necessary to comply with all of their obligations under international law, in particular those under the United Nations Charter and the Charter of the Organization of African Unity, and with United Nations Security Council resolution 1304 (2000) of 16 June 2000; (3) both Parties must, forthwith, take all measures necessary to ensure full respect within the zone of conflict for fundamental human rights and for the applicable provisions of humanitarian law’ ”; “The Congo requests the International Court of Justice to adjudge and declare: As regards the first counter-claim submitted by Uganda: (1) to the extent that it relates to the period before Laurent-Désiré Kabila came to power, Uganda’s claim is inadmissible because Uganda had previously renounced its right to lodge such a claim: in the alternative, the claim is unfounded because Uganda has failed to establish the facts on which it is based; (2) to the extent that it relates to the period from the time when LaurentDésiré Kabila came to power to the time when Uganda launched its armed attack, Uganda’s claim is unfounded in fact because Uganda has failed to establish the facts on which it is based; (3) to the extent that it relates to the period subsequent to the launching of Uganda’s armed attack, Uganda’s claim is unfounded both in fact and in law because Uganda has failed to establish the facts on which it is based and, in any event, from 2 August 1998 the DRC was in a situation of self-defence. As regards the second counter-claim submitted by Uganda: (1) to the extent that it now relates to the interpretation and application of the Vienna Convention of 1961 on Diplomatic Relations, the claim submitted by Uganda radically changes the subject-matter of the dispute, contrary to the Statute and to the Rules of Court; that part of the claim must therefore be dismissed from the present proceedings; (2) that part of the claim relating to the alleged mistreatment of certain Ugandan nationals remains inadmissible because Uganda has still failed to show that the requirements laid down by international law for the exercise of its diplomatic protection were satisfied; in the alternative, that part of the claim is unfounded because Uganda is still unable to establish the factual and legal bases of its claims.

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(3) that part of the claim relating to the alleged expropriation of Uganda’s public property is unfounded because Uganda is still unable to establish the factual and legal bases of its claims.” Basis of jurisdiction invoked: Article 36(2) of the ICJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

23 June 1999–19 December 2005

Provisional Measures

19 June 2000 to 1 July 2000

Between 26 and 28 June 2000

Merits

1 July 2000 to 19 December 2005

11 to 29 April 2005

Orders Date of Order and Authority

Content

21 October 1999 Court – President Schwebel

Fixing of time-limits for written Pleadings 21 July 2000 – Memorial of the DR Congo 21 April 2001 – Counter-Memorial of Uganda

1 July 2000 Court – President Guillaume

Please refer Section B

29 November 2001 Court – President Guillaume

Please refer Section C

7 November 2002 Court – President Guillaume

Extension of time-limits: From 29 November 2002 to 6 December 2002 – Rejoinder of Uganda

29 January 2003 Court – President Guillaume

Authorization of submission of additional pleadings by the DR Congo solely related to the Counter-Claims submitted by Uganda and fixing of 28 February 2003 time-limit for submitting the pleadings

Request for extension of time-limits State Party Uganda (1 time)

Remarks Request for filing of Rejoinder for extension from 29 November to 6 December 2002

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Official citation: Case Concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 111 Date of Order: 1 July 2000 Authoritative text: French Composition of the Court: President Guillaume; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Registrar Couvreur. Text of the operative paragraph(s) (p. 129, para. 47) THE COURT, Indicates, pending a decision in the proceedings instituted by the Democratic Republic of the Congo against the Republic of Uganda, the following provisional measures: (1) Unanimously, Both Parties must, forthwith, prevent and refrain from any action, and in particular any armed action, which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve; (2) Unanimously, Both Parties must, forthwith, take all measures necessary to comply with all of their obligations under international law, in particular those under the United Nations Charter and the Charter of the Organization of African Unity, and with United Nations Security Council resolution 1304 (2000) of 16 June 2000; (3) Unanimously, Both Parties must, forthwith, take all measures necessary to ensure full respect within the zone of conflict for fundamental human rights and for the applicable provisions of humanitarian law. Declarations/Opinions Declaration

Judges Oda and Koroma



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Sources of Law UN Charter

Art. 2(4), p. 112(5), 113(7) Art. 51, p. 122(28) Chapter VII, p. 121(27), 123–24 (35) UN Charter, p. 111(1), 122(28), 129(47)

ICJ Statute

Art. 36(2), p. 112(2), 118(22), 123(32, 34) Art 40(3), p. 114(8) Art. 41, p. 111, 115–116(13), 117(18), 121(27), 127(39), 128(45) Art. 48, p. 111

ICJ Rules of Court

Art. 42, p. 114(9) Art. 73, p. 111, 114(9) Art. 73(2), p. 116(14) Art. 74, p. 111, 114(9) Art. 74(3), p. 116(16) Art. 74(4), p. 114(9), 116(15) Art. 75, p. 111, 114(9), 115–116(13) Art. 75(1), p. 127(38) Art. 75(2), p. 128(43)

ICJ case-law

Current Order of 21 October 199, p. 114(8) Previous Monetary Gold Removed from Rome in 1943, [I.C.J. Reports 1954], p. 121–122(27) Military Activities in and against Nicaragua, [I.C.J. Reports 1984, p. 181(26)], p. 118(21) [I.C.J. Reports 1984, pp. 434–435(95)], p. 126(36) Frontier Dispute, [I.C.J. Reports 1986], p. 118(21) Genocide Cases, [I.C.J. Reports 1993, p. 19(33)], p. 118(21), 126(36) Land and Maritime Boundary between Cameroon and Nigeria, [I.C.J. Reports 1996, pp. 22–23(41)], p. 118(21), 128(44) Lockerbie (Libya v. UK), [I.C.J. Reports 1992], p. 121(26)  [I.C.J. Reports 1992, p. 15(40)], p. 126–127(36) Lockerbie (Libya v. USA), [I.C.J. Reports 1992], p. 121(26)

UN Resolutions

General Assembly 1948 Universal Declaration on Human Rights, p. 112(5) 3314 of 14 December 1974, p. 113(7) Security Council 1304 of 16 June 2000, p. 119(23), 121(26, 27), 122(30), 123(31, 35), 126(36), 127(37, 41), 128(44), 129(47) 1291(2000) of 24 February 2000, p. 123–124(35)

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Sources of Law (cont.) Treaties

1944 Chicago Convention on International Civil Aviation of 7 December 1944, p. 113(7) 1949 Geneva Conventions, p. 112(5), 113(7) 1966 International Covenant on Civil and Political Rights of 1966, p. 112(5) 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970, p. 113(7) 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971, p. 112(5), 113(7) 1977 Additional Protocols of 1977, p. 112(5), 113(7) 1984 New York Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 112(5) Lusaka Agreement, p. 120(4), 120–121(25), 121(37), 122(30), 123(31), 123–124(35) 2000 Kampala Disengagement Agreement of 8 April 2000, p. 119–120(24), 123–124(35)

Declaration

Declaration of Uganda under Art. 36(2) of the ICJ Statute of 3 October 1963, p. 123(32) Declaration of Congo under Art. 36(2) of the ICJ Statute of 8 February 1989, p. 123(32)

Inter(national) legal references

White Papers prepared by the Ministry of Human Rights of the Democratic Republic of Congo, p. 112(4)

International Institutions

OAU Charter, p. 111(1), 112(5), 129(47)

Section C – Counter-Claims Official citation: Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 29 November 2001, I.C.J. Reports 2001, p. 660 Date of Order: 29 November 2001 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Verhoeven, Kateka; Registrar Couvreur.



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Text of the operative paragraph(s) (p. 682, para. 51) THE COURT, (A) ( 1) Unanimously, Finds that the first counter-claim submitted by the Republic of Uganda in its Counter-Memorial is admissible as such and forms part of the current proceedings; (2) By fifteen votes to one, Finds that the second counter-claim submitted by the Republic of Uganda in its Counter-Memorial is admissible as such and forms part of the current proceedings; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Kateka AGAINST: Judge ad hoc Verhoeven (3) Unanimously, Finds that the third counter-claim submitted by the Republic of Uganda in its Counter-Memorial is inadmissible as such and does not form part of the current proceedings; (B) Unanimously, Directs the Democratic Republic of the Congo to submit a Reply and the Republic of Uganda to submit a Rejoinder relating to the claims of both Parties in the current proceedings and, fixes the following dates as time-limits for the filing of those pleadings: For the Reply of the Democratic Republic of the Congo, 29 May 2002: For the Rejoinder of the Republic of Uganda, 29 November 2002: and Reserves the subsequent procedure for further decision. Declarations/Opinions Declaration

Judge ad hoc Verhoeven

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Sources of Law UN Charter

Art. 2(4), p. 664(4), 673(21) Art. 51, p. 666(9) UN Charter, p. 660

ICJ Statute

Art. 41, p. 662(2) Art. 48, p. 660

ICJ Rules of Court

Art. 31, p. 660 Art. 44, p. 660 Art. 45, p. 660 Art. 80, p. 660, 665(5), 667(10), 669(14), 671(19), 676(27), 681(46) Art. 80(1), p. 666(8), 667(10), 670(14, 15), 672(21), 673(22), 677(30) Art. 80(2), p. 665(7), 670(15), 671(18), 677(31, 32, 33) Art. 80(3), p. 670(15), 680(44)

ICJ case-law

Current Order of 1 July 2000, p. 662(2) Order of 21 October 1999, p. 662(3), 664(4) Previous Application of the Convention on the Prevention and Punishment of the Crime of Genocide, [I.C.J. Reports 1997, p. 256(27)], p. 676(29), 678(35), 681(50) Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, [I.C.J. Reports 1998, p. 203(33)], p. 678(35), 681(50) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Order of 30 June 1999, [I.C.J. Reports 1999, p. 986], p. 681(50)

Treaties

OAU Charter, p. 660 Lusaka Agreement, p. 674(23), 678(34)

UN Resolutions

SC Resolution 1291 (2000), p. 680(42) SC Resolution 1304 (2000), p. 680(42)

Section D – Judgment Official citation: Armed Activities on the Territory of the Congo, Democratic Republic of the Congo v. Uganda, Judgment, I.C.J. Reports 2005, p. 168 Date of Judgment: 19 December 2005 Authoritative text: English



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Composition of the Court: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judges ad hoc Verhoeven, Kateka; Registrar Couvreur. Headnotes: Situation in the Great Lakes region – Task of the Court. Issue of consent. The DRC consented to presence of Ugandan troops in eastern border area in period Preceding August 1998 – Protocol on Security along the Common Border of 27 April 1998 between the DRC and Uganda – No particular formalities required For withdrawal of consent by the DRC to presence of Ugandan troops Ambiguity of the statement by President Kabila published on 28 July 1998 – Any Prior consent withdrawn at latest by Close of Victoria Falls Summit on 8 August 1998. Findings of fact concerning Uganda’s Use of force in respect of kitona. Denial by Uganda that it was involved in military action at Kitona on 4 August 1998 Assessment of evidentiary materials in relation to events at Kitona – Deficiencies in evidence adduced by the DRC – Not established to the Court’s satisfaction that Uganda participated in attack on Kitona. Findings of fact concerning military action in the east of the DRC and in other areas of that country. Determination by the court of facts as to Ugandan presence at and taking of certain locations in the DRC – Assessment of evidentiary materials Sketchmap evidence – Testimony before Porter Commission – Statements against interest – Establishment of locations taken by Uganda and corresponding “dates of capture”. Did the Lusaka, Kampala and Harare Agreements constitute any consent of the DRC to the presence of Ugandan troops? Contention of Uganda that the Lusaka, Kampala and Harare Agreements constituted consent to presence of Ugandan forces on Congolese territory – Nothing in provisions of Lusaka Agreement can be interpreted as affirmation that security interests of Ugandan had already required the presence of Ugandan Forces on territory of the DRC as from September 1998 – Lusaka Agreement represented an agreed modus operandi for the parties, providing framework for orderly withdrawal of all foreign forces from the DRC – The DRC did not thereby recognize situation ground as legal – Kampala and Harare dis-engagement plans did not change legal status of presence of Ugandan troops – Luanda Agreement authorized limited presence of Ugandan troops in border area- None of the aforementioned Agreements (save for Limited exception in the Luanda Agreement) constituted consent by the DRC to presence of Ugandan troops on Congolese territory for period after July 1999. Self-defence in light of proven facts.

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Question of whether Ugandan military action in the DRC from early August 1998 to July 1999 could be justified as action in self-defence – Ugandan High Command document of 11 September 1998 – Testimony before Porter Commission of Ugandan Minister of Defence and of commander of Ugandan forces in the DRC – Uganda regarded military events of August 1998 as part of Operation “Safe Haven” – Objectives of operation “Safe Haven” as stated in Ugandan High Command document not consonant with concept of self-defence- Examination of claim by Uganda of existence of tripartite anti-Ugandan conspiracy between the DRC, the ADF and the Sudan- evidence adduced by Uganda lacking in relevance and probative value – Article 51 of the United Nation Charter – No report made by Uganda to Security Council of events requiring it to act in self-defence – No claim by Uganda that it had been subjected to armed attack by armed forces of the DRC – No satisfactory proof Of involvement of Government of the DRC in alleged ADF attacks on Uganda – Legal and factual circumstances for exercise of right of self-defence by Uganda not present. Findings of law on the prohibition against the use of force Article 2, paragraph 4, of United Nations Charter – Security Council resolutions 1234 (1999) and 1304 (2000)- No credible evidence to support allegation by DRC that MLC was created and controlled by Uganda – Obligations arising under principles of non-use of force and non-intervention violated by Uganda – Unlawful military intervention by Uganda in the DRC constitutes grave violation of prohibition on use of force expressed in Article 2, paragraph 4 of Charter. The issue of belligerent occupation. Definition of occupation – Examination of evidence relating to the status of Uganda as occupying Power – Creation of new province of “Kibali-Ituri” by Commander of Ugandan forces in the DRC – No specific evidence provided by the DRC to show that authority exercised by Ugandan armed forces in any areas other than in lturi – Contention of the DRC that Uganda indirectly controlled areas outside lturi-administered by Congolese rebel groups not upheld by the Court – Uganda was the occupying Power in lturi – Obligations of Uganda. Violations of international human rights law and international humanitarian Law: contentions of the parties. Contention of the DRC that Ugandan armed forces committed wide–scale human rights violations on Congolese territory particularly in lturi – Contention of Uganda that the DRC has failed to provide any credible evidentiary basis to support its allegations. Admissibility of claims in relation to events in Kisangani. Contention of Uganda that the Court lacks competence to deal with events in Kisangani in June 2000 in the absence of Rwanda – Jurisprudence contained in Certain Phosphate Lands in Nauru case applicable in current proceedings – Interests of Rwanda do not Constitute “the very Subject-matter” of decision to be rendered by the Court- The Court is not precluded from adjudicating on whether Uganda’s conduct in Kisangani is a violation of international law.



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Violations of international human rights law and international humanitarian Law: findings of the Court. Examination of evidence relating to violations of international Human Rights law and international humanitarian law – Findings of fact – Conduct of UPDF and of officers and soldiers of UPDF attributable to Uganda – Irrelevant whether UPDF personnel acted contrary to instruction given or exceeded their authority – Applicable law – Violations of specific obligations under Hague regulations of 1907 binding as customary international Law – Violations of specific provisions of international humanitarian law and International human rights law instruments Uganda is internationally Responsible for violations of international human rights law and international Humanitarian law. Illegal exploitation of natural resources. Contention of the DRC that Ugandan troops systematically looted and exploited the assets and natural resources of the DRC contention of Uganda that the DRC has failed to provide reliable evidence to corroborate its allegations. Findings of the Court concerning acts of illegal exploition of natural resources. Examination of evidence relating to illegal exploitation of Congolese natural Resources by Uganda – Findings of fact conduct of UPDF and of officers and soldiers of UPDF attributable to Uganda irrelevant whether UPDF personnel acted contrary to instructions given or exceeded their authority applicable law principle of permanent sovereignty over natural resources not applicable to this situation illegal acts by UPDF in violation of the jus in bello – Violation of duty of vigilance by Uganda with regard to illegal acts of UPDF – No violation of duty of vigilance by Uganda with regard to illegal acts of rebel groups outside Ituri – international responsibility of Uganda for acts of its armed forces international responsibility of Uganda as an occupying Power. Legal consequences of violations of international obligations by Uganda. The DRC’s request that Uganda cease continuing internationally wrongful acts – No evidence to support allegations with regard to period after 2 June 2003 – Not established that Uganda continues to commit internationally wrongful acts specified by the DRC – The DRC’s request cannot be upheld. The DRC’s request for specific guarantees and assurances of non-repetition of the wrongful acts – Tripartite Agreement on Regional Security in the Great Lakes of 26 October 2004 – Commitments assumed by Uganda under the Tri-Partite Agreement meet the DRC’s request for specific guarantees and assurances of non-repetition – Demand by the Court that the parties respect their obligations under that Agreement and under general international law. The DRC’s request for reparation – Obligation to make full reparation for the injury caused by an international wrongful act – Internationally wrongful acts committed by Uganda resulted in injury to the DRC and persons on its territory – Uganda’s obligation to make reparation accordingly – Question of reparation to be determined by the Court.

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Failing agreement between the parties in a subsequent phase of the proceedings. Compliance with the Court’s Order on provisional measures. Binding effect of the Court’s Order on provisional measures – No specific evidence demonstrating violations of the Order of 1 July 2000 – The Court’s previous findings of violations by Uganda of its obligations under international Human rights law and international humanitarian law until final withdrawal of Ugandan troops on 2 June 2003 – Uganda did not comply with the Court’s Order on provisional measures of 1 July 2000 – This finding is without prejudice to the question as to whether the DRC complied with the order. Counter-claims: admissibility of objections. Question of whether the DRC is entitled to raise objections to admissibility of Counter-claims at current stage of proceedings – The Court’s order of 29 November 2001 only settled question of a direct connection within the meaning of article 80 question of whether objections raised by the DRC are inadmissible because they fail to conform to article 79 of the rules of Court – Article 79 inapplicable to the case of an objection to counter-claims joined to the original proceedings – The DRC is entitled to challenge admissibility of Uganda’s counter-claims. First counter-claim. Contention of Uganda that the DRC supported anti-Ugandan irregular forces – Division of Uganda’s first counter-claims into three periods by the DRC: prior to May 1997 from May 1997 to 2 August 1998 and subsequent to 2 August 1998 – No obstacle to examining the first counter-claims following the three periods of time and for practical purposes useful to do so – Admissibility of part of first counter-claim relating to period prior to May 1997 – Waiver of Right must be express or unequivocal – Nothing in conduct of Uganda can be considered as implying an unequivocal waiver of its right to bring a counter-claim relating to events which occurred during the Mobutu regime – The long period of time between events during the Mobutu regime and filing of Uganda’s counter-claims has not rendered inadmissible Uganda’s first counter claim for the period prior to May 1997 – No proof that Zaire provided political and military support to antiUgandan rebel groups – No breach of duty of vigilance by Zaire – No evidence of support for anti-Ugandan rebel groups by the DRC in the second period – Any military action taken by the DRC against Uganda in the third period could not be wrongful since it would be justified as action in self-defence – No evidence of support for anti-Ugandan rebel groups by the DRC in the third period. Second counter-claim. Contention of Uganda that Congolese armed forces attacked the premises of the Ugandan Embassy maltreated diplomats and other Ugandan nationals present on the premises and at Ndjili International Airport – Objections by the DRC to the admissibility of the second counter-claim – Contention of the DRC that the second counter-claim is not founded – Admissibility of the second



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counter-claim – Uganda is not precluded from invoking the Vienna Convention on Diplomatic Relations – With regard to diplomats Uganda claims its own rights under the Vienna Convention on Diplomatic Relations – Substance of the part of the counter-claim relating to acts of maltreatment against other persons on the premises of the Embassy falls within the ambit of Article 22 of the Vienna Convention on Diplomatic Relations – The part of the counter-claim relating to maltreatment of persons not enjoying diplomatic status at Ndjili International Airport is based on diplomatic protection – No evidence of Ugandan nationality of persons in question- Sufficient evidence to prove attacks against the Embassy and maltreatment of Ugandan diplomats – Property and archives removed from Ugandan Embassy – Breaches of the Vienna Convention on diplomatic Relations. The DRC bears responsibility for violation of international law on diplomatic relations – Question of reparation to be determined by the Court, failing agreement between the parties, in a subsequent phase of the proceedings. Text of the operative paragraph(s) (p. 280, para. 345) THE COURT, (1) By sixteen voes to one, Finds that the Republic of Uganda, by engaging in military activities against the Democratic Republic of the Congo on the latter’s territory, by occupying Ituri and by actively extending military, logistic, economic and financial support to irregular forces having operated on the territory of the DRC, violated the principle of non-use of force in international relations and the principle of non-intervention; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AI-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven AGAINST: Judge ad hoc Kateka (2) Unanimously, Finds admissible the claim submitted by the Democratic Republic of the Congo relating to alleged violations by the Republic of Uganda of its obligations under international human rights law and international humanitarian law in the course of hostilities between Ugandan and the Ugandan armed forces in the territory of the Democratic Republic of the Congo and by its failure to comply with its obligations as an occupying Power in Ituri district to prevent acts of looting, plundering and exploitation of Congolese natural resources, violated obligations owed to the Democratic Republic of the Congo under international law;

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IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven AGAINST: Judge ad hoc Kateka (5) Unanimously, Finds that the Republic of Uganda is under obligation to make reparation to the Democratic Republic of the Congo for the injury caused; (6) Unanimously, Decides that, failing agreement between the Parties, the question of reparation due to the Democratic Republic of the Congo shall be settled by the Court, and reserves for this purpose the subsequent procedure in the case; (7) By fifteen votes to two, Finds that the Republic of Uganda did not comply with the Order of the Court on provisional measures of 1 July 2000; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, AI-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven AGAINST: Judge Kooijmans; Judge ad hoc Kateka (8) Unanimously, Rejects the objections of the Democratic Republic of the Congo to the admissibility of the first counter-claim submitted by the Republic of Uganda; (9) By fourteen votes to three, Finds that the first counter-claim submitted by the Republic of Uganda cannot be upheld; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, AI-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Abraham; Judge ad hoc Verhoeven AGAINST: Judges Kooijmans, Tomka; Judge ad hoc Kateka (10) Unanimously, Rejects the objection of the Democratic Republic of the Congo to the admissibility of the part of the second counter-claim submitted by the Republic of Uganda relating to the breach of the Vienna Convention on Diplomatic Relations of 1961;



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(11) By Sixteen Votes to on Upholds the objection of the Democratic Republic of the Congo to the admissibility of the part of the second counter-claim submitted by the Republic of Uganda relating to the maltreatment of individuals other than Ugandan diplomats at Ndjili International Airport on 20 August 1998; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AI-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven AGAINST: Judge ad hoc Kateka (12) Unanimously Finds that the Democratic Republic of the Congo, by the conduct of its armed forces, which attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan diplomats and other individuals on the Embassy premises, maltreated Ugandan diplomats at Ndjili International Airport, as well as by its failure to provide the Ugandan Embassy and Ugandan diplomats with effective protection and by its failure to prevent archives and Ugandan property from being seized from the premises of the Ugandan Embassy, violated obligations owed to the Republic of Uganda under the Vienna Convention on Diplomatic Relations of 1961; (13) Unanimously Finds that the Democratic Republic of the Congo is under obligation to make reparation to the Republic of Uganda for the injury caused; (14) Unanimously Decides that, failing agreement between the Parties, the question of reparation due to the Republic of Uganda shall be settled by the Court, and reserves for this purpose the subsequent procedure in the case. Declarations/Opinions Declaration

Judge Koroma

Separate Opinion

Judges Parra-Aranguren, Kooijmans, Elaraby and Simma

Declaration

Judge Tomka and Judge ad hoc Verhoeven

Dissenting Opinion

Judge ad hoc Kateka

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Sources of Law UN Charter

Charter, p. 175(1), 269(304) Art. 2(3), p. 14(11) Art. 2(4), p. 180(23), 223(148), 224(153), 227(165) Art. 2(2), p. 42(97) Art. 51, p. 218(128), 221(142), 222(144)

ICJ Statute

Art. 31, p. 176(6) Art. 34(3), p. 177(12) Art. 36(1), p. 12(1) Art. 36(2), p. 175(2) Art. 36(3), p. 175(2) Art. 38, p. 44(104) Art. 40(3), p. 12(3) Art. 41, p. 176(4) Art. 56, p. 178(13) Art. 63(1), p. 177(12)

ICJ Rules of Court

Art. 38(4), p. 12(3) Art. 43, p. 177(12) Art. 53(2), p. 179(20) Art. 54, p. 179(17) Art. 54(1), p. 177(11) Art. 56, p. 178(16), 179(19) Art. 56(4), p. 200(58) Art. 57, p. 178(16) Art. 61(4), p. 180(22) Art. 69(3), p. 177(13) Art. 72, p. 180(22) Art. 74, p. 12(2) Art. 73(2), p. 12(3) Art. 79, p. 260(268, 269), 261(274) Art. 79(2), p. 13(6) Art. 79(3), p. 13(6) Art. 80, p. 176(7), 260(268, 269), 265(289) Art. 80(1), p. 209(93)

PCIJ case-law

Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 2, 1928, [P.C.I.J., Series A, No. 15, p. 23], p. 18(21) Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 16], p. 39(88), 40(90) Interpretation of the Statute of Memel Territory, Preliminary Objection, 1923, [P.C.I.J. Series A/B No. 47, p. 243], p. 39(88) Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, [P.C.I.J. Series A/B No. 79, p. 199], p. 39(88)



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Sources of Law (cont.) ICJ case-law

Current Order of 21 October 1999, p. 175(3), 176(5) Order of 1 July 2000 p. 176(4), 237(200), 258(262, 263, 264), 259(265) Order of 29 November 2001, p. 176(8), 177(10), 209(93), 259(266, 267), 260(269), 261(273), 265(289, 291), 271(314), 272(316), 274(325) Order of 7 November 2002, p. 176(9) Order of 29 January 2003, p. 177(10) Previous Corfu Channel, [I.C.J. Reports 1949, p. 22–23], p. 262(277) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 23], p. 19(22), 27(46), 29(54), 31(64) Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, [I.C.J. Reports 1952, p. 113–114], p. 19(22), 20(25), Legality of Use of Force (Yugoslavia v. Spain), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 773–774(40)], p. 20(25), 32(68) Legality of Use of Force (Yugoslavia v. USA), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 925–926(34)], p. 20(25), 32(68) Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), [I.C.J. Reports 1973, p. 18], p. 20(25) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p.50(85)], p. 201(59), 201(61), 203(65), 206(78), 222(143), 226(160), 227(164), 257(258, 261) Chorzów Factory, [ Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21], p. 257(259) Oil Platforms (Islamic Republic of Iran v. United States of America), [ Judgment, I.C.J. Reports 2003, p. 210 (105)], p. 261 (271, 272) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Preliminary Objections, [I.C.J. Reports 1998, p. 318–319], p. 275(326)

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Sources of Law (cont.) Gabčikovo-Nagymaros Project (Hungary/Slovakia), [Judgment, I.C.J. Reports 1997, p. 81(152)], p. 257(259) Avena and Other Mexican Nationals (Mexico v. United States of America) [I.C.J. Reports 2004 (I), p. 59(119)], p. 257(259) LaGrand (German v. United States of America), Judgment, [I.C.J. Reports 2001, p. 506(109)], p. 258(263) United States Diplomatic and Consular Staff in Tehran, [I.C.J. Reports 1980, p. 3], p. 201(59), 204(68), 274(323), 275(325), 279(342) Monetary Gold, [I.C.J. Report 1954, p. 32], p. 236 (198), 237(200), 238(203) Northern Cameroons, [I.C.J. Reports 1963, p. 37], p. 236(198) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 264–267 (69–70)], p. 237(200), 238(203), 266(293), 267(295) Arbitral Award of 31 July 1989, (Guniea Bissau v. Senegal) [I.C.J. Reports 1991, p. 72(56)], p. 20(25) Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 925–926(34)], p. 20(25), 31(61), Nuclear Tests (Australia v. France; New Zealand v. France), [I.C.J. Reports 1974], p. 254(15), p. 461(15)], p. 27(46), 28(49, 50) Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. ()], p. 27(46), 29(50) Legal Status of Eastern Greenland, [P.C.I.J. Series A/B No. 53, p. 45–46.], p. 27(46) Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 582 (54)], p. 28(49) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 90], p. 236(198), 237(200) Reservations to the Convention on Genocide, [I.C.J. Reports 1951, p. 15], p. 31(64), 32(66), 50(122) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, [I.C.J. Reports 1992, p. 3], p. 36(81), 39(88), 40(90), 41(92)



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Sources of Law (cont.) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. USA), Preliminary Objections, Judgment, [I.C.J. Reports 1998, p. 121–122(15–19)], p. 39(88), 40(90), 41(92) South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), I.C.J. Reports 1962, p. 328], p. 38(86), 39(88), 40(90) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p. 14], p. 39(88), 50(122) Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Order of 19 August 1988, [I.C.J. Reports 1987, p. 88–90(42–48)], p. 39(88) Interpretation of Peace Treaties, Advisory Opinion, [I.C.J. Reports 1950, p. 74], p. 40(90) Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, [I.C.J. Reports 2005, p. 18(24)], p. 40(90) Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, [I.C.J. Reports 2004, p. 167], p. 230(172), 243(216, 217) Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [I.C.J. Reports 1999, p. 62], p. 242(213) Treaties

Charter of the Organisation of African Unity, p. 175(1), 1965 Convention on Racial Discrimination of 21 December 1965, p. 12(1), 13(7), 14(11), 16(15), 21(27), 33(71, 72), 34(73, 74, 75), 35(77, 78, 79), 51(124), 52(125) 1979 Convention on Discrimination against Women of 18 December 1979, p. 12(1), 13(7), 14(11), 16(15), 35(80), 36(81, 82), 37(83, 85), 38(86, 87), 39(88), 40(89, 91), 41(92, 93) 1948 Genocide Convention of 9 December 1948, p. 177(12), 14(11), 16(15), 21(27, 28), 22(29, 30, 31), 23(33, 34), 24(36, 38), 25(39), 26(43, 44, 45), 28(50), 29(52, 54, 56), 30(57, 58, 59, 60, 61), 31(62, 63, 54), 32(66, 67, 68), 33(69, 70), 34(73, 75), 35(77, 78), 50(121), 51(124), 52(125) 1949 Geneva Conventions, p. 180(23), 234(190), 243(217), 244(218), 252(245) 1977 Additional Protocol I to the Geneva Conventions, p. 234(190), 242(214), 244(219)

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Sources of Law (cont.) 1961 Vienna Convention on Diplomatic Relations, p. 177(12), 185(24), 189(25), 271(313), 272(317), 274(322, 323, 324), 275(327, 329, 330), 276(331), 277(335), 277(337, 338), 278(340, 342), 279(343) 1946 WHO Constitution of 22 July 1946, p. 12(1) , 13(7), 14(11), 16(15), 21(27), 41(94, 95), 42(96, 97), 43(98, 99, 100, 101) 1945 UNESCO Constitution of 16 November 1945, p. 12(1), 13(7), 14(11), 16(15), 21(27), 43(102), 44(103, 104, 105), 45(106, 107, 108), 45(109) 1947 Privileges and Immunities Convention of 21 November 1947, p. 12(1), 17(17), 21(26) 1984 Convention against Torture of 10 December 1984, p. 177(12), 234(190) 1971 Montreal Convention of 23 September 1971, p. 181(23) 1969 Vienna Convention on Law of Treaties of 23 May 1969, p. 12(1), 13(7),1 6(15), 21(27), 25(41), 27(46), 30(57), 34(73), 49(120), 50(121), 51(123), 124, 125), 52(125) OAU Charter, p. 14(11), 1944 Chicago Convention of 7 December 1944, p. 177(12), 181(23) 1970 Hague Convention of 16 December 1970, p. 181(23) International Covenant on Civil and Political Rights, p. 177(12), 243(216, 217), 244(219) ICC Statute, p. 30(58), 31(62), 32(66) 1981 African Charter on Human and Peoples’ Rights of 27 June 1981, p. 177(12), 234(190), 244(218), 252(245) African Charter on the Rights and Welfare of the Child, p. 234(190) 1989 Convention on the Rights of the Child, p. 243(218), 244(219) 2000 Optional Protocol to the Convention on the Rights of the Child of 25 May 2000, p. 244(218, 219) 1999 Lusaka Agreement of 10 July 1999, p. 180(22), 190(26), 193(33), 195(40), 196(43), 209(89, 91), 210(95, 96, 97), 211(99, 100, 101), 212(104), 255(256) 2000 Kampala Plan of 8 April 2000, p. 193(33), 212(102) 2000 Harare Plan of 6 December 2000, p. 193(33), 225(156) 1998 Protocol between DR Congo and Uganda on Security along the Common Border of 27 April 1998, p. 194(36, 37), 197(46), 215(111)



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Sources of Law (cont.) 2002 Luanda Agreement between the DR Congo and Uganda on Withdrawal of Ugandan Tropps from the DR Congo, Co-Operation and Normalisation of Relations of 6 September 2002, p. 195(40), 212(102), 277(336), 278(342) 1907 Hague Regulations Respecting the Laws and Customs of War on Land annexed to the 4th Hague Convention of 18 October 1907, p. 229(169, 172), 230(174), 231(178), 234(190), 242(214), 243(217), 244(219), 252(245), 253(250) UN Resolutions

Universal Declaration of Human Rights, p. 15(11) 1979 UN GA Resolution 2625(XXV) of 24 October 1970, p. 226(162) SC Resolution 1304 of 16 June 2000, p. 188(25), 225(154), 233(184, 186), 239(206), 240(208), 258(262) SC Resolution 1417 of 14 June 2002, p. 38(86) SC Resolution 1234 of 9 April 1999, p. 211(100), 224(151) SC Resolution 1234(1999), 1258(1999), 1273 (1999), 1279(1999), 1291(2000), 1304(2000), 1316(2000), 1323(2000), 1332(2000), 1341(2001), 1355(2001), 1376(2001), 1399(2002), 1417(2002), 1445(2002), 1457(2003), 1468(2003), 1484(20003), 1489(2003), 1493(2003), 1499(2003), 1501(2003), 1522(2004), 1533(2004), 1552(2004), 1555(2004), 1565(2004), 1592(2005), 1596(2005), 1616(2005) and 1621(2005), p. 224(150) UN GA Resolution 3314 of 14 December 1974, p. 180(23), 223(146) UN GA Resolution 1803(XVII) on Permanent Sovereignty over Natural Resources of 14 December 1962, p. 246(226), 251(244) UN GA Resolution 3201 (S.VI) of 1 May 1974, p. 246(226), 268(300) Charter of Economic Rights and Duties of States, UN GA Resolution 3281 (XXIX) of 12 December 1974, p. 246(226), 251(244)

Inter(national) legal references

Protocol of Agreement on Miscellaneous Issues and Final Provisions between the Government of Rwanda and the Rwandan Patriotic Front of 3 August 1993, p. 22(30, 31), 23(34) Décret-loi No. 014/01 of 15 February 1995 of Rwanda, 22(30, 31), 23(32), 24(35), 25(39, 40, 41), 26(42, 44) Fundamental Law of the Rwandese Republic of 1995, p. 22(31) ICAO Declaration of 10 March 1999, p. 47(112) 28 July 1998 Official Statement by President Kabila of DR Congo, p. 198(49, 51), 199(53), 213(106)

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Sources of Law (cont.) 1998 Position of the High Command on the Presence of the UPDF in the DRC – Ugandan High Commission Document of 11 September 1998, p. 213(108, 109) Porter Commission Report – CW/01/02 23/07/01, p. 201(61), 215(114), 249(237), 252(246), 253(248) 15 October 1998 Statement of Lt Col Viala Mbeang Ilwa, p. 202(64) 2001 PANA Agency Press Communication, p. 203(66) 1998 Press Statements of the Democratic Party of Uganda of 14 and 18 September 1998, p. 203(67) 4 May 2001 Letter of the UN Secretary-General to the President of Uganda, p. 210(97) 2000 HRW Report of Human Rights Watch of 17 November 2000, p. 217(122), 225(159), 241(209, 210), 267(298) 1999 ICG Report – How Kabila Lost His Way?, p. 219(129), 220(135), 225(157, 158, 159) Chronological Illustration of Acts of Destabilisation by Sudan and Congo based Dissidents, p. 220(133) 2000 UN Secretary-General Report on MONUC, p. 225(159), 232(182, 183), 233(186), 235(191), 239(206) ILC Articles on Responsibility of States for internationally wrongful acts, 2001, p. 226(160), 266(293) 2000 Special Rapporteur of the Commission on Human Rights report of 18 January 2000 – E/CN/4/2000/42, para. 112, p. 239(206) 2001 Special Rapporteur of the Commission on Human Rights report of 18 January 2000 – E/CN/4/2001/40, para. 112, 148–151 p. 239(206), 240(209) 2003 Mr James Wapakhabulo, Minister of Foreign Affairs of Uganda Statement of April 2003, p. 255(255) UN document S/2004/573 of 16 July 2004, p. 239(206), 240(208, 209), 241(210) UN document A/55/403 of 20 September 2000, p. 240(209) UN document S/2001/128 of 12 February 2001, p. 240(209) 2000 Address by President Museveni of Uganda on “Uganda’s Role in the Democratic Republic of Congo” of 28 May 2000, p. 267(298)



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Representation of Parties Democratic Republic of Congo Head of Delegation

H.E. Mr. Hnorius Kisimba Ngoy Ndalewe, Minister of Justice, Keeper of The Seals of the Democratic Republic of the Congo, as Head of Delegation;

Agent

H.E. Mr. Jacques Masangu – a Mwanza, Ambassador Extraordinary and Plenipotentiary to the Kingdom of the Netherlands

Co-Agent and Advocate

Maitre Tshibangu Kalala, member of the Kinshasa and Brussels Bars,

Counsel and Advocates

Mr. Olivier Corten Professor of International Law, University libre de Bruxelles, Mr. Pierre Klein, Professor of international law Director of the Centre for International law, University libre de Bruxelles, Mr. Jean Salmon, Professor Emeritus, University libre de Bruxelles, Member of the institute of International law and of the Permanent Court of Arbitration, Mr. Philippe Sands, Q.C. Professor of Law, Director of the Center for international Court and Tribunals, University College London.

Advisers

Maitre Ilunga Lwanza, Deputy Directeur de cabinet and Legal Adviser, cabinet of the Minister of Justice Keeper of the Seals, Mr. Yambu A. Ngoyi, Chief Adviser to the Vice-Presidency of the Republic, Mr. Mutumbe Mbuya, Legal Adviser, cabinet of the Minister of Justice, Keeper of the Seals. Mr. Victor Musompo Kasongo, Private Secretary of the Minister of Justice, Keeper of the Seals. Mr. Nsingizi Mayemba, First Counsellor, Embassy of the Democratic Republic of the Congo in the Kingdom of the Netherlands, Ms. Marceline Masele, Second Counselor Embassy of the Democratic Republic of the Congo in the Kingdom of the Netherlands,

Assistant

Maitre Mbambuwa Cizubu, member of the Kinshasa Bar, Tshibangu and Parters, Mr. Francois Dubuisson, Lecturer, Universite libre de Bruxelles. Maitre Kikangala Ngole, member of the Brussels Bar, Ms. Anne Lagerwal Assistant Universite libre de Bruxelles, Ms. Anjolie Singh Assistant, University College London member of the Indian Bar.

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Uganda Agent, Counsel and Advocate

The Honourable E. Khiddu Makubuya S.C.M.P. Attorney General of the Republic of Uganda

Counsel and advocates

Mr. Ian Brownlie, C.B.E.Q.C.F.B.A. member of the English Bar, member of the International Law Commission Emeritus Chichele Professor of Public international Law University of Oxford Member of the Institute of international law, Mr. Paul S. Reichler, Foley Hoag LLP Washington D.C. Member of the Bar of the United State Supreme Court, member of the Bar of the District of Columbia, Mr. Eric Suy, Emeritus Professor, Catholic University of Leuven, former Under-Secretary-General and Legal Counsel of the United Nations. Membar of the Institute of International Law, The Honourable Amama Mbabazi, Minister of Defence of the Republic of Uganda, Major General Katumba Wamala Inspector General of police of the Republic of Uganda,

Counsel

Mr. Theodore Christakis, Professor of International Law, University of Grenoble II (Pierre Mendes France), Mr. Lawrence H. Martin, Foley Hoag LLP Washington D.C. member of the Bar of the District of Columbia,

Adviser

Captain Timothy Kanyogonya, Uganda People’s Defence Forces

CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (Democratic Republic of Congo v. Rwanda) General List No.: 117 Mean(s) and date of institution of the case: Application (23 June 1999) Statement of claim/question: Democratic Republic of the Congo requests the Court to: Adjudge and declare that: (a) Rwanda is guilty of an act of aggression within the meaning of Article 1 of resolution 3314 of the General Assembly of the United Nations of 14 December 1974 and of the jurisprudence of the International Court of Justice, contrary to Article 2, paragraph 4, of the United Nations Charter; (b) further, Rwanda is committing repeated violations of the Geneva Conventions of 1949 and their Additional Protocols of 1977, in flagrant disregard of the elementary rules of international humanitarian law in conflict zones, and is also guilty of massive human rights violations in defiance of the most basic customary law; (c) more specifically, by taking forcible possession of the Inga hydroelectric dam, and deliberately and regularly causing massive electrical power cuts, in violation of the provisions of Article 56 of the Additional Protocol of 1977, Rwanda has rendered itself responsible for very heavy losses of life among the 5 million inhabitants of the city of Kinshasa and the surrounding area; (d) by shooting down, on 9 October 1998 at Kindu, a Boeing 727 the property of Congo Airlines, thereby causing the death of 40 civilians, Rwanda has also violated the Convention on International Civil Aviation signed at Chicago on 7 December 1944, the Hague Convention of 16 December 1970 for the Suppression of Unlawful Seizure of Aircraft and the Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

Armed Activities on the Territory of Congo (DR Congo v. Rwanda)

390

Consequently, and pursuant to the aforementioned international legal obligations, to adjudge and declare that: (1) all Rwandan armed forces participating in acts of aggression shall forthwith vacate the territory of the Democratic Republic of the Congo; (2) Rwanda shall secure the immediate and unconditional withdrawal from Congolese territory of its nationals, both natural and legal ­persons; (3) the Democratic Republic of the Congo is entitled to compensation from Rwanda in respect of all acts of looting, destruction, removal of property and persons and other unlawful acts attributable to Rwanda, in respect of which the Democratic Republic of the Congo reserves the right to determine at a later date the precise amount of the damage suffered, in addition to its claim for the restitution of all property removed. Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute; Art. 30(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, together with Art. 14(1) of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

23 June 1999 to continues

Orders Date of Order and Authority

Content

21 October 1999 Court – President Schwebel

Decision that the written proceedings shall first be addressed to the questions of the jurisdiction of the Court to entertain the Application and of its admissibility and Fixing of time-limits: 21 April 2000 – Memorial of Rwanda 23 October 2000 – Counter-Memorial of the Democratic Republic of the Congo

19 October 2000 President Guillaume

Extension of time-limits: From 23 October 2000 to 23 January 2001 – CounterMemorial of the Democratic Republic of Congo

30 January 2001 President Guillaume

Discontinuance of the proceedings and removal of the case from the List.



Armed Activities on the Territory of Congo (DR Congo v. Rwanda)

391

Request for extension of time-limits State Party Democratic Republic of Congo (1 time)

Remarks Request to extend filing of Counter-Memorial not exceeding four months from the time-limit set by the order of 21 October 1999 – No objection by Rwanda

APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (Croatia v. Serbia) Status: Case Pending as of 31 December 2010 General List No.: 118 Mean(s) and date of institution of the case: Application (2 July 1999) Statement of claim/question: Croatia asks the Court to adjudge and declare: “(1) that the Federal Republic of Yugoslavia has breached its legal obligations toward the people and Republic of Croatia under Articles 1, II (a), II (h), II (c), II (d), III (a), III (b), III (c), III (d), III (e), IV and V of the Genocide ­Convention; (b) that the Federal Republic of Yugoslavia has an obligation to pay to the Republic of Croatia, in its own right and as parens patriae for its citizens, reparations for damages to persons and property, as well as to the Croatian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. The Republic of Croatia reserves the right to introduce to the Court at a future date a precise evaluation of the damages caused by the Federal Republic of Yugoslavia.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

2 July 1999 to continues

Preliminary Objections

18 November 2008 (8 years / 4 months / 16 days)

Public sittings 26–30 May 2008

Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) 393 Orders Date of Order and Authority

Content

14 September 1999 Court – President Schwebel

Fixing of time-limits: 12 March 2000 – Memorial of Croatia 14 September 2000 – Counter-Memorial of the Federal Republic of Yugoslavia

10 March 2000 President Guillaume

Extension of time-limits: 14 September 2000 – Memorial of Croatia 14 September 2001 – Counter-Memorial of the Federal Republic of Yugoslavia

27 June 2000 Court – President Guillaume

Extension of time-limits: 14 March 2001 – Memorial of Croatia 16 September 2002 – Counter-Memorial of the Federal Republic of Yugoslavia

14 November 2002 Court – President Guillaume

Consideration of the particular circumstances and of the agreement of the parties and fixing of timelimits 29 April 2003 – Written Statement of its observations and submissions on the preliminary objections raised by the Federal Republic of Yugoslavia

20 January 2009 Court – President Higgins

Fixing of time-limits: 22 March 2010 – Counter-Memorial of Serbia

4 February 2010 Court – President Owada

Direction of submission of a Reply by Croatia and Rejoinder by Serbia and fixing of time-limits 20 December 2010 – Reply of Croatia 4 November 2011 – Rejoinder of Serbia

Section B – Preliminary Objections Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, I.C.J. Reports 2008, p. 412 Date of order: 18 November 2008 Authoritative text: English Composition of the Court: Present: President Higgins; Vice-President Al-­Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Vukas, Kreća; Registrar Couvreur.

394 Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Table of Contents: I. Identification of the Respondent Party II. General Overview of the Arguments of the Parties III. Brief History of the Status of the FRY with regard to the United Nations IV. Relevance of Previous Decisions of the Court V. Preliminary Objection to the Jurisdiction of the Court (1) Issues of capacity to be a party to the proceedings (2) Issues of jurisdiction ratione materiae (3) Conclusions VI. Preliminary Objection to the Jurisdiction of the Court and to Admissibility, Ratione Temporis VII. Preliminary Objection concerning the Submission of Certain Persons to Trial; the Provision of Information on Missing Croatian Citizens; and the Return of Cultural Property (1) Submission of persons to trial (2) Provision of information on missing Croatian citizens (3) Return of cultural property (4) Conclusion VIII. Operative Clause Text of the operative paragraph(s) (p. 466, para. 146) THE COURT (1) By ten votes to seven, Rejects the first preliminary objection submitted by the Republic of Serbia in so far as it relates to its capacity to participate in the proceedings instituted by the Application of the Republic of Croatia; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Buergenthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov; Judge ad hoc Kreća (2) By twelve votes to five, Rejects the first preliminary objection submitted by the Republic of Serbia in so far as it relates to the jurisdiction ratione materiae of the Court under Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide to entertain the Application of the Republic of Croatia; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Vukas AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren; Judge ad hoc Kreća

Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) 395 (3) By ten votes to seven, Finds that subject to paragraph 4 of the present operative clause the Court has jurisdiction to entertain the Application of the Republic of Croatia; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Buergenthal, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas AGAINST: Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Owada, Skotnikov; Judge ad hoc Kreća (4) By eleven votes to six, Finds that the second preliminary objection submitted by the Republic of Serbia does not, in the circumstances of the case, possess an exclusively preliminary character; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas AGAINST: Judges Shi, Koroma, Parra-Aranguren, Tomka, Skotnikov; Judge ad hoc Kreća (5) By twelve votes to five, Rejects the third preliminary objection submitted by the Republic of Serbia. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna; Judge ad hoc Vukas AGAINST: Judges Shi, Koroma, Parra-Aranguren, Skotnikov; Judge ad hoc Kreća. Declarations/Opinions Separate Opinion

Vice-President Al-Khasawneh

Joint Declaration

Judges Ranjeva, Shi, Koroma and Parraaranguren

Dissenting Opinion

Judges Ranjeva and Owada

Separate Opinion

Judges Tomka and Abraham

Declaration

Judge Bennouna

Dissenting Opinion

Judge Skotnikov

Separate Opinion

Judge ad hoc Vukas

Dissenting Opinion

Judge ad hoc Kreća

396 Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Sources of Law UN Charter

UN Charter, p. 421(23) Art. 93(1), p. 436(77)

ICJ Statute

Art. 31(3), p. 415(8) Art. 34, p. 430(59), 432(65), 432(68), 440(84) Art. 34(1), p. 430(58, 59) Art. 34(3), p. 415(3) Art. 35, p. 424(36), 430(60), 431(63, 64), 432(65, 66), 432(67, 68), 437(77), 440(84), 441(86), 440(90) Art. 35(1), p. 430(58, 61, 63), 431(64), 434(71), 435(72) Art. 35(2), p. 430(58, 61, 63), 434(71), 435(72), 444(92) Art. 36(2), p. 445(95) Art. 36(6), p. 442(86) Art. 40(2), p. 415(2) Art. 40(3), p. 415(2) Art. 49, p. 416(13), 417(15) Art. 59, p. 428(53) Art. 63(1), p. 415(3)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

PCIJ case-law

Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 34], p. 431(64), 438(82), 441(85), 442(87), 443(89)

43, p. 415(3) 53(1), p. 416(10) 53(2), p. 417(17) 56, p. 416(15) 56(1), p. 416(13) 61(4), p. 417(19) 62(1), p. 416(13), 417(15) 72, p. 417(19) 79(1) (1978 Rules), p. 415(9) 79(3)(1978 Rules), p. 416(9) 79(7)(1978 Rules), p. 459(128), 465(145)

Certain German Interests in Polish Upper Sliesia, Jurisdiction Judgment No. 6, 1925, [P.C.I.J. Series A, p. 6(14)], p. 439(80) ICJ case-law

Current Order of 8 April 1993, p. 428(52) Order of 13 September 1993, p. 428(52) Judgment of 11 July 1996, p. 436(75), 457(122) Order of 14 September 1999, p. 415(4) Order of 10 March 2000, p. 415(5) Order of 27 June 2000, p. 415(7) Order of 14 November 2002, p. 416(9) Judgment of 3 February 2003, p. 428(52) Previous cases Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), p. 308(73)], p. 424(36), 427(49), 431(63, 64), 432(67), 434(71), 435(75), 437(76), 442(86, 88), 453(114, 115),

Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) 397 Sources of Law (cont.) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia) (Serbia and Montenegro), [I.C.J. Reports 2007(I), p. 76(77)], p. 421(29, 30), 423(33), 424(38), 432(66), 433(68), 434(69), 437(79), 439(80), 446(97), 448(101, 102), 452(113), 453(114), 457(122), 462(135), 464(141) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, [I.C.J. Reports 1998, p. 26(44)], p. 438(79), 460(128) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 260(53)], p. 423(33) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Preliminary Objections, [I.C.J. Reports 1998, p. 292(28], p. 429(54) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1984, p. 428–429(83)], p. 439(80), 445(95), 459(128), 461(132) Northern Cameroons, Preliminary Objections, [I.C.J. Reports 1963, p. 28], p. 439(80) Nottebohm, [I.C.J. Reports 1953, p. 122], p. 445(95) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, [I.C.J. Reports 2006, p. 28–29(52)], p. 450(108) North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), Judgment, [I.C.J. Reports 1969, para 27 and 28], p. 451(110) Oil Platforms (Islamic Republic of Iran v. United States of America), [Judgment, I.C.J. Reports 2003, p. 177(29)], p. 645 (37)], p. 456(120) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 92(4)], p. 456(120) Avena and Other Mexican Nationals (Mexico v. United States of America) Judgment [I.C.J. Reports 2004 (I), p. 28–29(24)], p. 457(120), 462(136)

398 Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Sources of Law (cont.) Treaties

1948 Genocide Convention, p. 415(1), 417(20), 423(32, 35), 424(38), 425(39, 40, 41), 440(83), 442(88), 444(91, 94), 445(95, 96), 446(97), 445(106), 450(108), 451(111), 452(112), 454(116, 117), 455(118), 457(121), 458(123,124), 460(129), 461(133), 462(135), 463(137, 138, 139), 464(140, 141), 465(142, 143) 1969 Vienna Convention on Law of Treaties, p. 445(106), 450(109) 1978 Vienna Convention on Succession of States in Respect of Treaties, p. 450(109)

UN Resolution

General Assembly Resolution 47/1 of 22 September 1992, p. 427(46, 47) 55/12 of 1 November 2000, p. 427(51) 56/83, 12 December 2001, p. 459(125) 60/264 of 28 June 2006, p. 421(25) A/46/915, Ann. II, p. 426(44), 447(99) Security Council Resolution 9 of 15 October 1946, p. 430(58), 431(36) 777 (1992) of 19 September 1992, p. 426(45), 426(46, 47),

UN documents

A/47/474, p. 427(48) A/47/485, p. 427(48) A/55/528-S/2000/1043, p. 453(115)

Inter(national) legal Declaration of Independence of Republic of Montenegro of references 3 June 2006, p. 416(11) Constitutional Charter of Serbia and Montenegro, p. 421(23), 422(27, 28, 30) 2000 Letter by FR Yugoslavia President to the UN SecretaryGeneral of 27 October 2000, p. 427(50) 1992 Declaration by the participants of the joint session of the SFRY Assembly, the National Assembly of the Republic of Serbia and the Assembly of the Republic of Montenegro of 27 April 1992, p. 426(44), 447(100), 448(102, 103), 449(105, 106, 107), 451(111), 453(115) 1992 Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the Secretary-General of the United Nations, p. 447(97, 100, 101), 451(111), 454(117) Article 10, paragraph 2, of the International Law Commission’s Articles on the State Responsibility, p. 459(125, 126, 127)

Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) 399 Representation of Parties Croatia Agent

H.E. Mr. Ivan Šimonovic’, Ambassador, Professor of Law at the University of Zagreb Law Faculty,

Co-Agents

H.E. Ms. Andreja Metelko-Zgombic’, Ambassador, Head of International Law Service, Ministry of Foreign Affairs and European Integration of the Republic of Croatia, Ms. Maja Seršic’, Professor of Law at the University of Zagreb Law Faculty, H.E. Mr. Frane Krnic’, Ambassador of the Republic of Croatia to the Kingdom of the Netherlands,

Counsel & Advocates

Mr. James Crawford, S.C., Whewell Professor of International Law, University of Cambridge, Barrister, Matrix Chambers, Mr. Philippe Sands, Q.C., Professor of Law, University College London, Barrister, Matrix Chambers,

Counsel

Mr. Mirjan Damaška, Sterling Professor of Law, Yale Law School, Ms. Anjolie Singh, Member of the Indian Bar,

Advisers

Mr. Ivan Salopek, Third Secretary of the Embassy of Croatia in the Netherlands, Ms. Jana Špero, Directorate for Co-operation with International Criminal Courts, Ministry of Justice,

Serbia Agent

Mr. Tibor Varady, S.J.D. (Harvard), Professor of Law at the Central European University, Budapest, and Emory University, Atlanta,

Co-Agent

Mr. Saša Obradovic’, First Counsellor of the Embassy of Serbia in the Netherlands,

Counsel & Advocates

Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law at the University of Kiel, Director of the Walther-Schücking Institute, Mr. Vladimir Djeric’, LL.M. (Michigan), Attorney at Law, Mikijelj, Jankovic’ & Bogdanovic’, Belgrade, President of the International Law Association of Serbia,

Advisers

H.E. Mr. Radoslav Stojanovic’, S.J.D., Ambassador of the Republic of Serbia to the Kingdom of the Netherlands, Professor at the Belgrade University School of Law, H.E. Ms. Sanja Milinkovic’, LL.M., Ambassador, Head of the International Legal Service of the Ministry of Foreign Affairs of the Republic of Serbia,

400 Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Serbia (cont.) Mr. Vladimir Cvetkovic’, First Secretary of the Embassy of Serbia in the Netherlands, Ms. Jelena Jolic’, M.Sc. (London School of Economics and Political Science), Mr. Igor Olujic’, Attorney at Law, Belgrade, Mr. Svetislav Rabrenovic’, LL.M. (Michigan), Mr. Christian J. Tams, LL.M., Ph.D. (Cambridge), WaltherSchücking Institute, University of Kiel, Ms. Dina Dobrkovic’, LL.B.,

CASE CONCERNING THE AERIAL INCIDENT OF 10 AUGUST 1999 (Pakistan v. India) General List No.: 119 Mean(s) and date of institution of the case: Application (21 September 1999) Statement of claim/question: Pakistan requested the Court to judge and declare as follows: (a) that the acts of India (as stated above) constitute breaches of the various obligations under the Charter of the United Nations, customary international law and treaties specified in the body of this Application for which the Republic of India bears exclusive legal responsibility; (b)  that India is under an obligation to make reparations to the Islamic Republic of Pakistan for the loss of the aircraft and as compensation to the heirs of those killed as a result of the breaches of the obligations committed by it under the Charter of the United Nations and relevant rules of customary international law and treaty provisions.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) and (2) of the ICJ Statute and declarations of India and Pakistan accepting the compulsory jurisdiction of the Court Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

21 September 1999 to 21 June 2000

Preliminary objection

2 November 1999 to 21 June 2000

Public sittings From 3 to 6 April 2000

Aerial Incident of 10 August 1999 (Pakistan v. India)

402 Orders

Date of Order and Authority 19 November 1999 Court – President Schwebel

Content Decision that the written pleadings shall first be addressed to the question of the jurisdiction of the Court to entertain the Application and fixing of time-limits: 10 January 2000 – Memorial of Pakistan 28 February 2000 – Counter-Memorial of India

Section B – Judgment Official citation: Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment, I.C.J. Reports 2000, p. 12 Date of Judgment: 21 June 2000 Authoritative text: English Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal; Judges ad hoc Pirzada, Reddy; Registrar Couvreur. Headnotes: Jurisdiction of the Court. Article 17 of the General Act of 1928 and Article 37 of the Statute of the Court – Article 17 as basis of jurisdiction challenged on diverse grounds – Freedom of the Court to select the ground on which it founds its decision. India’s communication of 18 September 1974 that it has never been party to the General Act as an independent State – Communication to be considered in the circumstances of the present case as having served the same legal ends as notification of denunciation under Article 45 of the General Act. Declarations of acceptance of the compulsory jurisdiction of the Court by the Parties under Article 36, paragraph 2, of the Statute. Commonwealth reservation (subparagraph(2) of first paragraph of India’s declaration): Pakistan’s contention that the Commonwealth reservation should be regarded as an extra-statutory reservation going beyond the conditions of Article 36, paragraph 3, of the Statute – Court’s jurisdiction existing only within the limits within which it has been accepted – Paragraph 3 of Article 36 of the Statute never regarded as laying down in an exhaustive manner the conditions under which declarations may be made – recognition in the practice of States of their right to



Aerial Incident of 10 August 1999 (Pakistan v. India)

403

attach to declarations of acceptance of the jurisdiction of the Court reservations defining the parameters of that acceptance. Pakistan’s contention that the Commonwealth reservation should be regarded as a discriminatory act constituting an abuse of right – Reservation referring generally to States which are or have been members of the Commonwealth – Freedom of States to limit the scope ratione personae of their acceptance of the Court’s jurisdiction. Pakistan’s contention that the Commonwealth reservation is obsolete – Change or disappearance of historical reasons for the appearance of the reservation – Considerations which cannot prevail over the intention of a declarant State as expressed in the text of its declaration – Limitation of the scope ratione personae of acceptance of the jurisdiction of the Court binding on the letter. Pakistan’s contention that India is estopped from invoking the Commonwealth reservation against it – Article 1, paragraph (ii), of the Simla Accord of 1972 constituting an obligation, generally, on the two States to settle their differences by peaceful means to be agreed by them – Provision in no way modifying the specific rules governing recourse to any such means, including judicial settlement. Multilateral treaty reservation (subparagraph (7) of first paragraph of India’s declaration) – No necessity to consider in the present case. Article 36, paragraph 1, of the Statute. Absence from the United Nations Charter of any specific provision of itself conferring compulsory jurisdiction on the Court – reliance by Pakistan on Articles 1, paragraph1, 2, paragraphs 3 and 4, 33, 36, paragraph 3, and 92 of the Charter. Reliance by Pakistan on Article 1, paragraph (i), of the Simla Accord – ­Obligation of the Parties to respect the principles and purposes of the Charter in their mutual relations – Provision not as such entailing any obligation on the two States to submit their disputes to the Court. Obligation of the Parties to settle their disputes by peaceful means, and in particular the dispute arising out of the aerial incident of 10 August 1999, in accordance with the provisions of the Charter and with the other obligations which they have undertaken. Text of the operative paragraph(s) (p. 34, para. 56) By fourteen votes to two, Finds that it has no jurisdiction to entertain the Application filed by the Islamic Republic of Pakistan on 21 September 1999. IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-­Aranguren, Kooijmans, Buergenthal; Judgead hoc Reddy AGAINST: Judge Al-Khasawneh; Judge ad hoc Pirzada

404

Aerial Incident of 10 August 1999 (Pakistan v. India)

Declarations/Opinions Separate Opinion

Judges Oda, Koroma and Judge ad hoc Reddy

Dissenting Opinion

Judge Al-Khasawneh and Judge ad hoc Pirzada

Sources of Law PCIJ Statute

Art 36, p. 18(13), 29(37)

UN Charter

Art. 1(1), p. 32(47, 48) Art. 1(2), p. 32(47, 48) Art. 1(3), p. 32(47, 48) Art. 1(4), p. 32(47, 48) Art. 2(2), p. 33(53) Art. 2(3), p. 32(47, 48) Art. 2(4), p. 16(9) Art. 33, p. 32(47, 48), 33(53) Art 36(3), p. 32(47, 48) Art. 92, p. 32(47, 48) UN Charter, p. 15–16(3), 17(8, 9), 26(30), 32(47), 33(49)

ICJ Statute

Art. 31(3), p. 16(5) Art. 36(1), p. 15(1, 3), 18(12), 32(47), 33(50) Art 36(2), p. 15(1, 3), 18(12), 25(29), 26(30), 32(46) Art. 36(3), p. 26(30), 27(31), 29(35), 29–30(37), 30(39) Art. 36(6), p. 27–28(31) Art. 37, p. 18–19(13), 25(28) Art. 40(2), p. 15(2) Art. 40(3), p. 15(2)

ICJ Rules of Court

Art. 31, p. 16(4) Art. 53(2), p. 16(6)

PCIJ case-law

Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, [P.C.I.J., Series A, No. 22, p. 13], p. 33(52) Phosphate in Morocco, Judgment, [P.C.I.J., Series A/B, No. 74, p. 23], p. 29(36)

ICJ case-law

Current Order of 19 November 1999, p. 16(4) Previous Anglo-Iranian Oil Co., [I.C.J. Reports 1952, p. 105], p. 30–31(42) Certain Norwegian Loans, [I.C.J. Reports 1957, p. 25], p. 23–24(26) [I.C.J. Reports 1957, p. 27], p. 30–31(42) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 327], p. 19(15)



Aerial Incident of 10 August 1999 (Pakistan v. India)

405

Sources of Law (cont.) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 17], p. 23(26) [I.C.J. Reports 1978, pp. 16–17(39)], p. 23–24(26) Military and Paramilitary Activities in and Against Nicaragua, [I.C.J. Reports 1984, p. 418(59), p. 28(32), 29(36) Frontier Dispute (Burkina Faso v. Republic of Mali), [I.C.J. Reports 1986, p. 577(46)], p. 33(52) Passage through the Great Belt, [I.C.J. Reports 1991, p. 20], p. 33(52) Fisheries Jurisdiction (Spain v. Canada), [I.C.J. Reports 1998, p. 453(44), p. 30(38) [I.C.J. Reports 1998, p. 454(49)], p. 30–31(42) [I.C.J. Reports 1998, p. 456(55–56)], p. 33(51) [I.C.J. Reports 1998, p. 456(56)], p. 34(55) League resolutions

League of Nations Assembly resolution of 26 September 1928, p. 29(37)

Treaties

General Act for the Pacific Settlement of International Disputes of 26 September 1928, p. 18(12, 13), 19(14, 15, 16, 17), 20(18), 21(20), 21–22(21), 22(23), 23(24, 25, 26), 24(27), 25(28), 32(47) Simla Accord of 2 July 1972, p. 22(22, 23), 26(30), 27–28(31), 31(45), 33(49), 33–34(54) 1978 Vienna Convention on Succession of States in respect of Treaties, p. 19–20(17), 21–22(21) 1992 Lahore Declaration between India and Pakistan of 21 February 1999, p. 33–34(54)

Declaration

Declaration of India under Art. 36(2) of the ICJ Statute of 15 September 1974, p. 15–16(3), 17(9), 18(12), 25(29), 29(34) Declaration of Pakistan under Art. 36(2) of the ICJ Statute of 13 September 1960, p. 18(12), 25(29)

Inter(national) legal Communication by His Majesty’s Secretary of State for India references to the League of Nations Secretariat of 21 May 1931 (later revised on 15 February 1939), p. 24(27) Indian Independence (International Arrangements) Order issued by the Governor-General of India on 14 August 1947, p. 20(18), 21(19) Pakistan’s Notification of succession to the UN Secretary-General of 30 May 1974, p. 20(18) Judgment of the Supreme Court of Pakistan of 6 June 1961, p. 21(20)

406

Aerial Incident of 10 August 1999 (Pakistan v. India)

Sources of Law (cont.) India’s communication to the UN Secretary-General of 18 September 1974, p. 19–20(17, 18), 21–22(21), 22(23), 23–24(26), 25(28), 27–28(31), 31(43), 32(46) UN Documents

Report of Sub-Committee D to Committee IV/1 on Article 36 of the Statute of the International Court of Justice, 31 May 1945, UNCIO, [Vol. XIII, p. 559], p. 29–30(37) Report of the Expert Committee No. IX on Foreign Relations of 1947, p. 21–22(21)

Others

[I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 348], p. 23(26) [I.C.J. Pleadings, Trial of Pakistani Prisoners of War, p. 143], p. 23(26)

Representation of Parties Pakistan Acting Agent

Mr. Amir A. Shadani, Chargé d’affaires a.i., Embassy of Pakistan in the Netherlands,

Co-Agent

Mr. Jamshed A. Hamid, Legal Adviser, Ministry of Foreign Affairs,

Deputy Agent

Mr. Moazzam A. Khan, First Secretary, Embassy of Pakistan in the Netherlands,

Chief Counsel

H.E. Mr. Aziz A. Munshi, Attorney General for Pakistan and Minister of Law,

Counsel

Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of Cambridge, Member of the Institut de droit international, Dr. Fathi Kemicha, Doctor of Law of Paris University, avocat at the Paris Bar, Mr. Zahid Said, Barrister-at-Law, Ministry of Law, Justice and Human Rights, Mr. Ross Masud, Deputy Legal Adviser, Ministry of Foreign Affairs, Mr. Shair Bahadur Khan, Deputy Legal Adviser, Ministry of Foreign Affairs,

Solicitor

Miss Norah Gallagher, Solicitor,

India Agent

H.E. Mr. Prabhakar Menon, Ambassador of India to the Netherlands,

Co-Agent & Advocate Dr. P. Sreenivasa Rao, Joint Secretary (Legal & Treaties) and Legal Adviser, Ministry of External Affairs,



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India (cont.) Deputy Agent

Ms. M. Manimekalai, Counsellor (Political), Embassy of India in the Netherlands,

Chief Counsel & Advocate

H.E. Mr. Soli J. Sorabjee, Attorney General of India,

Counsel & Advocates Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, Member of the Institut de droit international, Mr. Alain Pellet, Professor, University of Paris X-Nanterre, Member and former Chairman of the International Law Commission, Counsel & Experts

Dr. B. S. Murty, Formerly Professor and Dean of Law, Andhra and Osmania Universities, Advocate, Hyderabad, Mr. B. Sen, Senior Advocate, Supreme Court of India, Dr. V. S. Mani, Professor of International Space Law, Jawaharlal Nehru University, New Delhi, Dr. M. Gandhi, Legal Officer (Grade I), Ministry of External Affairs,

Advisers

Mr. Vivek Katju, Joint Secretary (IPA), Ministry of External Affairs, Mr. D. P. Srivastava, Joint Secretary (UNP), Ministry of External Affairs,

Research Assistant

Ms. Marie Dumée Temporary Research and Teaching Assistant, University of Paris X-Nanterre,

CASE CONCERNING MARITIME DELIMITATION BETWEEN NICARAGUA AND HONDURAS IN THE CARIBBEAN SEA (Nicaragua v. Honduras) General List No.: 120 Mean(s) and date of institution of the case: Application (8 December 1999) Statement of claim/question: Nicaragua: “The Court is asked to determine the course of the single maritime boundary between the areas of territorial sea, continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Honduras, in accordance with equitable principles and relevant circumstances recognised by general international law as applicable to such a delimitation of a single maritime boundary. This request for the determination of a single maritime boundary is subject to the power of the Court to establish different delimitations, for shelf rights and fisheries respectively, if, in the light of the evidence, this course should be necessary in order to achieve an equitable solution. While the principal purpose of this Application is to obtain a declaration concerning the determination of the maritime boundary or boundaries, the Government of Nicaragua reserves the right to claim compensation for interference with fishing vessels of Nicaraguan nationality or vessels licensed by Nicaragua, found to the north of the parallel of latitude 14° 59'08" claimed by Honduras to be the course of the delimitation line. Nicaragua also reserves the right to claim compensation for any natural resources that may have been extracted or may be extracted in the future of the south of the line of delimitation that will be fixed by the Judgment of the Court.” Memorial of Nicaragua: May it please the Court to adjudge and declare that: The bisector of the lines representing the coastal fronts of the two parties, as applied and described in paragraphs 22 and 29, Chapter VIII above, and illustrated on the graphic, constitutes the boundary for the purposes of the delimitation of the disputed areas of the continental shelf and exclusive economic zone in the region of the Nicaraguan Rise. The approximate median line, as described in paragraphs 27 and 29, Chapter X above, and illustrated on the graphic, constitutes the boundary for the purpose of the delimitation of the disputed areas of the territorial sea, extending to the outer limit of the



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territorial sea, but in the absence of a sector coterminous with the mouth of the River Coco and with the terminus of the land boundary”; Basis of jurisdiction invoked by the Applicant(s): Article XXXI of the American Treaty on Pacific Settlement (officially known as the “Pact of Bogotá”) of 30 April 1948 and Art. 36(2) of the ICJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

8 December 1999 to 8 October 2007

Orders Date of Order and Authority

Content

21 March 2000 Court – President Guillaume

Fixing of time-limits: 21 March 2001 – Memorial of Nicaragua 21 March 2002 – Counter-Memorial of Honduras

13 June 2002 Court – President Guillaume

Authorisation the submission of a reply by Nicaragua and a Rejoinder by Honduras 13 January 2003 – Reply of Nicaragua 13 August 2003 – Rejoinder of Honduras

Section B – Merits Official citation: Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, Nicaragua v. Honduras, Judgment, I.C.J. Reports 2007, p. 659 Date of Judgment: 8 October 2007 Authoritative text: English Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Torres Bernárdez, Gaja; Registrar Couvreur.

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Table of Contents: 1. Chronology of the Procedure 2. Geography 2.1. Configuration of the Nicaraguan and Honduran coasts 2.2. Geomorphology of the mouth of the River Coco 3. Historical Background 4. Positions of the Parties: A General Overview 4.1. Subject-matter of the dispute 4.2. Sovereignty over the islands in the area in dispute 4.3. Maritime delimitation beyond the territorial sea 4.3.1. Nicaragua’s line: bisector method 4.3.2. Honduras’s line: “traditional boundary” along the parallel 14°9.8' North latitude (“the 15th parallel”) 4.4. Starting-point of the maritime boundary 4.5. Delimitation of the territorial sea 5. Admissibility of the new Claim Relating to Sovereignty over the Islands in the area in Dispute 6. The Critical Date 7. Sovereignty over the Islands 7.1. The maritime features in the area in dispute 7.2. The uti possidetis juris principle and sovereignty over the islands in ­dispute 7.3. Post-colonial effectivités and sovereignty over the disputed islands 7.4. Evidentiary value of maps in confirming sovereignty over the disputed islands 7.5. Recognition by third States and bilateral treaties; the 1998 Free Trade Agreement 7.6. Decision as to sovereignty over the islands 8. Delimitation of Maritime Areas 8.1. Traditional maritime boundary line claimed by Honduras 8.1.1. The principle of uti possidetis juris 8.1.2. Tacit agreement 8.2. Determination of the maritime boundary 8.2.1. Applicable law 2618.2.2. Areas to be delimited and methodology 8.2.3. Construction of a bisector line 8.2.4. Delimitation around the islands 8.2.5. Starting-point and endpoint of the maritime boundary 8.2.6. Course of the maritime boundary 9. Operative Clause



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Text of the operative paragraph(s) (p. 760, paragraph 321) THE COURT, (1) Unanimously, Finds that the Republic of Honduras has sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay; (2) By fifteen votes to two, Decides that the starting-point of the single maritime boundary that divides the territorial sea, continental shelf and exclusive economic zones of the Republic of Nicaragua and the Republic of Honduras shall be located at a point with the co-ordinates 15 00'52"N and 83 05'58"W; 59’ 08” IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, ­Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Gaja AGAINST: Judge Parra-Aranguren, Judge ad hoc Torres Bernárdez (3) By fourteen votes to three, Decides that starting from the point with the co-ordinates 15 00'52"N and 83 05'58"W the line of the single maritime boundary shall follow the azimuth 70 1441.25 until its intersection with the 12-nautical-mile arc of the territorial sea of Bobel Cay at point A (with co-ordinates 15 05'25"N and 82 5254"W). From point A the boundary line shall follow the 12-nautical-mile arc of the territorial sea of Bobel Cay in a southerly direction until its intersection with the 12-nautical-mile arc of the territorial sea of Edinburgh Cay at point B (with co-ordinates 14 57'13"N and 82 50'03"W). From point B the boundary line shall continue along the median line which is formed by the points of equidistance between Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua), through point C (with co-ordinates 14 56'45"N and 82 33'56"W) and D (with co-ordinates 14 56'35"N and 82 33'20"W), until it meets the point of intersection of the 12-nautical-mile arcs of the territorial seas of South Cay (Honduras) and Edinburgh Cay (Nicaragua) at point E (with co-ordinates 14 53'15"N and 82 29'24"W). From point E the boundary line shall follow the 12-nautical-mile arc of the territorial sea of South Cay in a northerly direction until it meets the line of the azimuth at point F (with co-ordinates 15 16'08"N and 82 21'56"W). From point F, it shall continue along the line having the azimuth of 70 14’41.25” until it reaches the area where the rights of third States may be affected;

412

Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, SepúlvedaAmor, Bennouna, Skotnikov; Judge ad hoc Gaja AGAINST: Judges Ranjeva, Parra-Aranguren, Judge ad hoc Torres Bernárdez (4) By sixteen votes to one, Finds that the Parties must negotiate in good faith with a view to agreeing on the course of the delimitation line of that portion of the territorial sea located between the endpoint of the land boundary as established by the 1906 Arbitral Award and the starting-point of the single maritime boundary determined by the Court to be located at the point with the co-ordinates 15 00'52"N and 83 05'58"W. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, SepúlvedaAmor, Bennouna, Skotnikov; Judges ad hoc Torres Bernárdez, Gaja AGAINST: Judge Parra-Aranguren. Declarations/Opinions Separate Opinion

Judge Ranjeva

Separate Opinion

Judge Koroma

Declaration

Judge Parra-Aranguren

Dissenting Opinion

Judge ad hoc Torres Bernárdez

Declaration

Judge ad hoc Gaja

Sources of Law ICJ Statute

Art. Art. Art. Art. Art. Art.

31(3), p. 664(5) 34(3), p. 664(3) 40(1), p. 695(108) 40(2), p. 664(2) 40(3), p. 664(3) 63(1), p. 664(3, 4)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art.

38(2), p. 695(108) 43, p. 664(3, 4) 43(2), p. 664(4) 49(4), p. 667(18) 50, p. 664(7) 53(1), p. 665(9, 11) 53(2), p. 666(14)



Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

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Sources of Law (cont.) Art. 56, p. 664(12) Art. 69(3), p. 664(3) Art. 72, p. 666(14) PCIJ case-law

Prince von Pless Administration, Order of 4 February 1933, [P.C.I.J., Series A/B, No. 52, p. 14], p. 695(108) Société Commerciale de BelgiqueJudgment, 1939, [P.C.I.J., Series A/B, No. 78, p. 173], p. 695(108) Mavrommatis Palestine Concessions, Judgment No. 2, 1924 [P.C.I.J., Series A, No. 2, p. 11], p. 700 (130) Legal Status of Eastern Greenland, [P.C.I.J. Series A/B No. 53, p. 45–46.], p. 712(172, 173), 721(208)

ICJ case-law

Current Order of 21 March 2000, p. 664(5) Order of 13 June 2002, p. 665(8) Previous (Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, p. 202–203], p. 675(38, 40), 707(154), 709(161), 743(279) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267(69)], p. 695(108, 110) The Minquiers and Ecrehos case, Judgement of November 17th, 1953: [I.C.J. Reports 1953, p. 71], p. 721(208), 737(257) Fisheries Jurisdiction (Spain v. Canada), [I.C.J. Reports 1998, p. 447(29)], p. 695(108), 696(110) Temple of Preah Vihear, Merits, Judgment, [I.C.J. Reports 1962, p. 36), p. 696(110) North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), [I.C.J. Reports 1969, p. 51(96)], p. 696(113), 741(269), 744(280), 747(289) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p. 7(15)], p. 696(113) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 1995, p. 97(185)], p. 696 (113), 703(141), 720(206), 739(265, 268), 747(289), 751(303) Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), Judgment of 17 December 2002: I.C.J. Reports 2002, p. 682(135)], p. 698(118), 712(174), 713(175), 717(194), 719(201), 734(256)

414

Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

Sources of Law (cont.) Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 567(26)], p. 706(151, 152, 153), 710(165), 711(171), 714(215, 216, 217) Frontier Dispute (Benin/Niger) Judgment, [I.C.J. Reports, 2005, p. 120(47)], p. 710(165) Arbitral Award made by the King of Spain on 23 December 1906, Honduras v. Nicaragua [I.C.J. Reports 1960, p. 192], p. Land, Island and Maritime Frontier Dispute (El Salvador / Honduras: Nicaragua intervening), Judgment, [I.C.J. Reports 1992, p. 558(333)], p. 707(156, 157), 708(160) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, [I.C.J. Reports 2002, p. 448(304)], p. 730(238), 741(271), 747(289), 756(312) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p. 42(68)], p. 732(245) Gulf of Maine Case, [I.C.J. Reports 1984, p. 327(194)], p. 739(265), 743(279), 746(287) Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1982, p. 85(121)], p. 745(280), 746(287), 756(312) Continental Shelf (Libya /Malta), Judgment [I.C.J. Reports 1985, p. 45(57)], p. 747(289), 756(312) Monetary Gold Removed from Rome, [I.C.J. Report 1954, p. 19], p. 756(312) Territorial and Maritime Dispute (Nicaragua v. Colombia), p. 758(315) Treaties

1850 Treaty between Nicaragua and Queen of Spain recognizing Nicaragua’s independence from Spain, p. 673(33), 705(149) 1866 Treaty between Honduras and Queen of Spain recognizing Honduras’s independence from Spain of 15 March 1866, p. 674(35), 705(149) 1869 Ferrer-Medina Treaty between Nicaragua and Honduras of 1869, p. 674(36) 1896 Gámez-Bonilla Treaty between Nicaragua and Honduras of 26 December 1896, p. 674(37), 676(41), 704(147), 707(154), 727(229) Pact of Bogota, p. 664 1928 Barcenas-Esguerra Treaty between Nicaragua and Colombia, p. 758(315)



Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

415

Sources of Law (cont.) 1928 Treaty between Honduras and Nicaragua, p. 734(251) 1958 Convention on the Territorial Sea and the Contiguous Zone, p. 744(280) 1982 Law of the Sea Convention, p. 664(4), 693(102), 694(103), 696(113), 702(136, 137), 703(142, 143), 729(237), 738(261, 262), 739(264), 740(267, 268, 269), 741(270), 742(277), 743(278, 280), 745(281), 748(294), 751(302), 759(319) Treaty of Arbitration between Guatemala and Honduras, p. 701(134) 1986 Maritime Treaty between Honduras and Colombia 2 August 1986, p. 681(59), 683(67, 69), 684(70), 725(222), 733(246), 734(251), 736(255), 758(316) 1992 Tegucigalpa Protocol to the Charter of the OAS, p. 683(69) 1993 Treaty between Colombia and Jamaica, p. 725(222), 733(246), 734(251), 736(255), 759(317) 1998 Central America-Dominican Republic Free Trade Agreement of 16 April 1998 between Nicaragua, Honduras, Costa Rica, Guatemala, El Salvador and the Dominican Republic, p. 726(226) Inter(national) legal 1906 Award of the King of Spain of 23 December 1906, references p. 668(19), 675(37, 38, 40), 676(42, 44), 677(45, 46), 692(99), 699(125), 704(147), 707(154), 711(167), 727(229), 729(235, 238), 733(247), 736(256), 737(260), 755(309), 756(310, 311) 1912 Note of Nicaragua challenging the validity of 1906 Award, p. 675(38) 1977 Diplomatic Note of Nicaragua of 11 May 1977, p. 677(48) 1977 Diplomatic Note of Honduras of 20 May 1977, p. 677(48) 1979 Diplomatic Note of Honduras of 21 September 1979, p. 678(49) 1979 Continental Shelf and Adjacent Sea Act of Nicaragua of 19 December 1979, p. 678(50) 1982 Constitution of Honduras of 11 January 1982, p. 678(51) 1982 Diplomatic Note of Honduras of 23 March 1982, p. 678(52), 735(252) 1982 Diplomatic Note of Nicaragua of 14 April 1982, p. 679(53) 1982 Diplomatic Note of Honduras of 3 May 1982, p. 679(54), 680(56), 736(257)

416

Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

Sources of Law (cont.) 1982 Diplomatic Note of Honduras of 18 September 1982, p. 680(55, 56) 1982 Diplomatic Note of Nicaragua of 19 September 1982, p. 680(56) 1984 Diplomatic Note of Honduras of 27 June 1984, p. 680(57) 1986 Diplomatic Note of Nicaragua of 8 September 1986, p. 681(59) 1986 Diplomatic Note of Honduras of 29 September 1986, p. 681(60) 1990 Joint Declaration between Foreign Ministers of Honduras and Nicaragua of 5 September 1990, p. 681(61) 1991 Joint Declaration between Honduras and Nicaragua, p. 681(62) 1994 Diplomatic Note of Honduras of 7 April 1994, p. 684(71) 1994 Diplomatic Note of Nicaragua of 14 April 1994, p. 684(71) 1995 Diplomatic Note of Nicaragua of 9 June 1995, p. 684(71) 1995 Diplomatic Note of Honduras of 19 April 1995, p. 682(64) 1995 Diplomatic Note of Nicaragua of 5 May 1995, p. 682(64) 1995 Diplomatic Note of Honduras of 18 and 27 December 1995, p. 682(65) 1995 Diplomatic Note of Nicaragua of 20 December and 6 January 1996, p. 682(65) 1997 Memorandum of Understanding between Honduras and Nicaragua of 683(67) 1999 Order of Central American Court of Justice of 30 November 1999, p. 684(69) 2000 Order of Central American Court of Justice of 17 January 2000, p. 684(69) 2001 Judgment of Central American Court of Justice, p. 684(70) Frontier Dispute between Colombia and Venezuela, United Nations, Reports of International Arbitral Awards (RIAA), Vol. I, p. 228, p. 701(133) 1933 Arbitral Award by the Special Boundary Tribunal of 23 January 1933 by the Treaty between Guatemala and Honduras, p. 701(134), 710(165), 723(213) 1760 Royal Decree of 17 December 1760, p. 704(148)



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417

Sources of Law (cont.) 1745 Royal Warrant of 23 August 1745, p. 705(148) 1803 Royal Decree of 20 November 1803, p. 705(148) 1936 Agrarian Law of Honduras, p. 713(178, 179) 1957, 1965 and 1982 Constitutions of Honduras, p. 713(178) 1999 Note addressed by the Regional Agent of Migration of Puerto Lempira to the General Director of Population and Migration Policy of 31 March 1999 of Honduras, p. 715(186) Island of Palmas (Netherlands/United States of America), 4 April 1928, [RIAA, Vol. II, p. 852–853], p. 723(214) 1976 Honduran/United States Arrangement on Savanna Cay, p. 724(220, 221) 1745 Royal Order of 23 August 1745, p. 728(230) 1803 Royal Decree of 1803, p. 728(230) 2000 Honduran Executive Decree No. PCM 007-2000 of 21 March 2000, p. 743(278) 1952 Yearbook of the International Law Commission (YILC), 1952, Vol. II, p. 38, commentary, para. 4), p. 744(280) Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, International Law Reports, Vol. 77, p. 682, para. 104., p. 745(280), 747(288), 756(311)

Representation of Parties Nicaragua Agent, Counsel & Advocate

H.E. Mr. Carlos Argüello Gómez, Ambassador of the Republic of Nicaragua to the Kingdom of the Netherlands,

Counsel and advocates

H.E. Mr. Samuel Santos, Minister for Foreign Affairs of the Republic of Nicaragua, Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United Nations International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de droit international, Distinguished Fellow, All Souls College, Oxford, Mr. Alex Oude Elferink, Research Associate, Netherlands Institute for the Law of the Sea, Utrecht University,

418

Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

Nicaragua (cont.) Mr. Alain Pellet, Professor at the University Paris X-Nanterre, Member and former Chairman of the United Nations International Law Commission, Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid, Scientific and Technical Advisors

Mr. Robin Cleverly, M.A., D.Phil, C.Geol, F.G.S., Law of the Sea Consultant, Admiralty Consultancy Services, Mr. Dick Gent, Law of the Sea Consultant, Admiralty Consultancy Services,

Assistant Advisors

Ms. Tania Elena Pacheco Blandino, First Secretary, Embassy of the Republic of Nicaragua in the Kingdom of the Netherlands, Ms. Nadine Susani, Doctor of Public Law, Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre,

Assistants

Ms. Gina Hodgson, Ministry of Foreign Affairs of the Republic of Nicaragua, Ms. Ana Mogorrón Huerta,

Honduras Agents

H.E. Mr. Max Velásquez Díaz, Ambassador of the Republic of Honduras to the French Republic, H.E. Mr. Roberto Flores Bermúdez, Ambassador of the Republic of Honduras to the United States of America,

Co-agent

H.E. Mr. Julio Rendón Barnica, Ambassador of the Republic of Honduras to the Kingdom of the Netherlands,

Counsel and advocates

Mr. Pierre-Marie Dupuy, Professor of Public International Law, University of Paris (Panthéon-Assas), and the European University Institute in Florence, Mr. Luis Ignacio Sánchez Rodríguez, Professor of International Law, Universidad Complutense de Madrid, Mr. Christopher Greenwood, C.M.G., Q.C., Professor of International Law, London School of Economics and Political Science, Mr. Philippe Sands, Q.C., Professor of Law, University College London,



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Honduras (cont.) Mr. Jean-Pierre Quéneudec, Professor emeritus of International Law at the University of Paris I (Panthéon-Sorbonne), Mr. David A. Colson, LeBoeuf, Lamb, Green & MacRae, L.L.P., Washington, D.C., member of the California State Bar and District of Columbia Bar, Mr. Carlos Jiménez Piernas, Professor of International Law, Universidad de Alcalá, Madrid, Mr. Richard Meese, avocat à la Cour d’appel de Paris, Advisers

H.E. Mr. Milton Jiménez Puerto, Minister for Foreign Affairs of the Republic of Honduras, H.E. Mr. Eduardo Enrique Reina García, Deputy Minister for Foreign Affairs of the Republic of Honduras, H.E. Mr. Carlos López Contreras, Ambassador, National Counsellor, Ministry of Foreign Affairs of the Republic of Honduras, H.E. Mr. Roberto Arita Quiñónez, Ambassador, Director of the Special Bureau on Sovereignty Affairs, Ministry of Foreign Affairs of the Republic of Honduras, H.E. Mr. José Eduardo Martell Mejía, Ambassador of the Republic of Honduras to the Kingdom of Spain, H.E. Mr. Miguel Tosta Appel, Ambassador, Chairman of the Honduran Demarcation Commission, Ministry of Foreign Affairs of the Republic of Honduras, H.E. Ms. Patricia Licona Cubero, Ambassador, Adviser for Central American Integration Affairs, Ministry of Foreign Affairs of the Republic of Honduras,

Assistant Advisers

Ms. Anjolie Singh, Assistant, University College London, member of the Indian Bar, Ms. Adriana Fabra, Associate Professor of International Law, Universitat Autónoma de Barcelona, Mr. Javier Quel López, Professor of International Law, Universidad del País Vasco, Ms. Gabriela Membreño, Assistant Adviser to the Minister for Foreign Affairs of the Republic of Honduras, Mr. Sergio Acosta, Minister Counsellor, Embassy of the Republic of Honduras in the Kingdom of the Netherlands,

Technical Advisers

Mr. Scott Edmonds, Cartographer, International Mapping, Mr. Thomas D. Frogh, Cartographer, International Mapping,

CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 (Democratic Republic of Congo v. Belgium) General List No.: 121 Mean(s) and date of institution of the case: Application (17 October 2000) Statement of claim/question: Congo requests the Court to adjudge and declare that  “1. By issuing and internationally circulating the arrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard to the Democratic Republic of the Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers; in so doing, it violated the sovereign equality among states;  2. A formal finding by the Court of the unlawfulness of that act constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the Democratic Republic of the Congo;  3. The violations of international law underlying the issue and international circulation of the arrest warrant of 11 April 2000 preclude any State, including Belgium, from executing it;  4. Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000 and inform the foreign authorities to whom the warrant was circulated that Belgium renounces its request for their cooperation in executing the unlawful warrant.” Basis of jurisdiction invoked by the Applicant(s): Belgium has accepted the jurisdiction of the Court and [that], in so far as may be required, the present Application signifies acceptance of that jurisdiction by the Democratic Republic of the Congo (as stated in the Congo’s application dated 17 October 2000)



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421

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

17 October 2000 14 February 2002

Provisional Measures

17 October 2000 to 8 December 2000

20, 21, 22 and 23 November 2000

Judgment

8 December 2000 to 14 February 2002

15 to 19 October 2001

Orders Date of Order and Authority

Content

8 December 2000 Court – President Guillaume

Please refer Section B

13 December 2000 President Guillaume

Fixing of time-limits: 15 March 2001 – Memorial of the Democratic Republic of the Congo; 31 May 2001 – Counter-Memorial of Belgium

14 March 2001 President Guillaume

Extension of time-limits 17 April 2001 – Memorial of the DR Congo 31 July 2001 – Counter-Memorial of Belgium

12 April 2001 President Guillaume

Extension of time-limits From 15 March to 17 May 2001 – Memorial of the DR Congo From 31 May 2001 to 17 September 2001 – CounterMemorial of Belgium

27 June 2001 Court – President Guillaume

Rejection of Belgium request to submit preliminary objections involving suspension of the merit proceedings and extension of time-limit from 17 to 28 September 2001 for counter-memorial of Belgium addressing both questions of jurisdiction and admissibility and the merits

Request for extension of time-limits State Party DR Congo (2 times)

Remarks Request for filing of Memorial to be extended for 30 days Request for filing of Memorial to be extended till 2nd fortnight of April 2011

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Official citation: Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Provisional Measures, Order of 8 December 2000, I.C.J. Reports 2000, p. 182 Date of order: 8 December 2000 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula, Van Den Wyngaert; Registrar Couvreur. Text of the operative paragraph(s) (p. 202, para. 78) THE COURT, (1) Unanimously, Rejects the request of the Kingdom of Belgium that the case be removed from the List; (2) By fifteen votes to two, Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, ParraAranguren, Kooijmans, Al-Khasawneh, Buergenthal; Judge ad hoc Van den Wyngaert AGAINST: Judge Rezek; Judge ad hoc Bula-Bula Declarations/Opinions Declaration

Judges Oda and Ranjeva and Judge ad hoc van Den Wyngaert

Separate Opinion

Judges Koroma and Parra-Aranguren

Sources of Law UN Charter

Art. 2(1), p. 182–183(1)

ICJ Statute

Art. 31(3), p. 186(16) Art. 36(1), p. 191(31) Art. 36(2), p. 198(61), 200(68)



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Sources of Law (cont.) Art. 36(4), p. 199(63) Art. 40(2), p. 185(12) Art. 40(3), p. 185(13) Art 41, p. 182, 201(39) Art. 41(1), p. 185(8) Art. 48, p. 182 ICJ Rules of Court

Art. 38(2), p. 199(63) Art. 38(4), p. 185(12) Art. 42, p. 185(13) Art. 73, p. 182 Art 73(2), p. 185(12) Art. 74, p. 182 Art. 74(3), p. 186(14) Art 75(1), p. 193(39), 194(43) Art. 75(2), p. 193(39), 194(43) Art. 79, p. 186(15)

PCIJ case-law

Factory at Chorzów, [P.C.I.J., Series A, No. 12, p. 10], p. 193(36)

ICJ case-law

Current Arrest Warrant of 11 April 2002 (Democratic Republic of Congo v. Belgium), p. 196(50) Previous Northern Cameroons, [I.C.J. Reports 1963, p. 38], p. 197(55) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 272(62), p. 197(55) United States Diplomatic and Consular Staff in Tehran, Order of 15 December 1979, [I.C.J. Reports 1979 ], p. 187–188(20) Military and Paramilitary Activities in and against Nicaragua, [I.C.J. Reports 1986, p. 32(44)], p. 199(63) Border and Transborder Armed Actions (Nicaragua v. Honduras), [I.C.J. Reports 1988, p. 95(66)], p. 197(55) Lockerbie (Libya v. UK), [I.C.J. Reports 1998, p. 26(46)], p. 197(55) Legality of Use of Force (Yugoslavia v. Spain) [I.C.J. Reports 1999, p. 35], p. 197(55) Legality of Use of Force (Yugoslavia v. Belgium), [I.C.J. Reports 1999, p. 44], p. 199(62), 199–200(63)

UN Security Council 827 of 25 May 1993, p. 184(6) Resolutions 955 of 8 November 1994, p. 184(6) 1234 (1999) of 9 April 1999, p. 193(39) 1291(2000) of 24 February 2000, p. 188(23), 193(39)

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Sources of Law (cont.) Treaties

1919 Treaty of Versailles, p. 189(24) 1948 Genocide Convention, p. 188(23) 1949 Geneva Conventions, p. 189(24) 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, p. 194(41) 1961 Vienna Convention on Diplomatic Relations, p. 182–183(1) 1966 International Covenant on Civil and Political Rights, p. 194(41) 1969 Vienna Convention on the Law of Treaties, p. 193–199(40) Statute of the International Criminal Court, p. 189(24) Statute of the Special Court for Sierra Leone, p. 189(24)

Declaration

Belgium declaration under Art. 36(2) of the ICJ Statute of 17 June 1958, p. 194(42), 198(61) Congo (then Zaire) declaration under Art. 36(2) of the ICJ Statute of 8 February 1989, p. 194(42), 198(61)

Inter(national) legal Judgment of the Nuremberg Tribunal of 1946, p. 189(24) references 1996 Draft Code of Offences against the Peace and Security of Mankind, p. 189(24) Belgian Law of 16 June 1993, p. 183(4), 186–187(18), 189(24) Belgian Penal Code, p. 194(41) Belgian Law of 10 February 1999, p. 183(4), 189(24) Art. 12 of the Preliminary Title of the Belgian Code of Criminal Procedure, p. 186(18)

Section C – Judgment Official citation: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3. Date of Judgment: 14 February 2002 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra­Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judgesad hoc BulaBula, Van Den Wyngaert; Registrar Couvreur.



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Headnotes: Facts of the case – Issue by a Belgian investigating magistrate of “an international arrest warrant in absentia” against the incumbent Minister of Foreign Affairs of the Congo, alleging grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto and crimes against humanity – International circulation of arrest warrant through Interpol – Person concerned subsequently ceasing to hold office as Minister for Foreign Affairs. First objection of Belgium – Jurisdiction of the Court – Statute of the Court, Article 36, paragraph 2 – Existence of a “legal dispute” between the Parties at the timing of filing of the Application instituting proceedings – Events subsequent to the filing of the Application do not deprive the Court of jurisdiction. Second objection of Belgium – Mootness – Fact that the person concerned had ceased to hold office as Minister for Foreign Affairs does not put an end to the dispute between the Parties and does not deprive the Application of its object. Third objection by Belgium – Admissibility – Facts underlying the Application instituting proceedings not changed in a way that transformed the dispute originally brought before the Court into another which is different in character. Fourth objection of Belgium – Admissibility – Congo not acting in the context of protection of one of its nationals – Inapplicability of rules relating to exhaustion of local remedies. Subsidiary argument of Belgium – Non ultra petita rule – Claim in Application instituting proceedings that Belgium’s claim to exercise a universal jurisdiction in issuing the arrest warrant is contrary to international law – Claim not made in final submissions of the Congo – Court unable to rule on that question in the operative part of its Judgment but not prevented from dealing with certain aspects of the question in the reasoning of its Judgment. Immunity from criminal jurisdiction in other States and also inviolability of an incumbent Minister for Foreign Affairs – Vienna Convention on Diplomatic Relations of 18 April 1961, preamble, Article 32 – Vienna Convention on Consular Relations of 24 April 1963 – New York Convention on Special Missions of 8 December 1969, Article 21, paragraph 2 – Customary international law rules – Nature of the functions exercised by a Minister for Foreign Affairs – Functions such that, throughout the duration of his or her office, a Minister for Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction and inviolability – No distinction in this context between acts performed in an “official” capacity and those claimed to have been performed in a “private capacity”. No exception to immunity from criminal jurisdiction and inviolbility where an incumbent Minister for Foreign Affairs suspected of having committed war crimes or crimes against humanity – Distinction between jurisdiction of national courts and jurisdictional immunities – Distinction between immunity from jurisdiction and impunity.

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Issuing of arrest warrant intended to enable the arrest on Belgian territory of an incumbent Minister for Foreign Affairs – Mere issuing of a warrant a failure to respect the immunity and inviolability of Minister for Foreign Affairs – Purpose of the international circulation of the arrest warrant to establish a legal basis for the arrest of Minister for Foreign Affairs abroad and his subsequent extradition to Belgium – International circulation of the warrant a failure to respect the immunity and inviolability of Minister for Foreign Affairs. Remedies sought by the Congo – Finding by the Court of international responsibility of Belgium making good the moral injury complained of by the Congo – Belgium required by means of its own choosing to cancel the warrant in question and so inform the authorities to whom it was circulated. Text of the operative paragraph(s) (p. 32, para. 78) THE COURT, (1)(A) By fifteen votes to one, Rejects the objections of the Kingdom of Belgium relating to jurisdiction, mootness and admissibility; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula Bula, Van den Wyngaert AGAINST: Judge Oda (B) By fifteen votes to one, Finds that it has jurisdiction to entertain the Application filed by the Democratic Republic of the Congo on 17 October 2000; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula Bula, Van den Wyngaert AGAINST: Judge Oda (C) By fifteen votes to one, Finds that the Application of the Democratic Republic of Congo is not without object and that accordingly the case is not moot; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula Bula, Van den ­Wyngaert AGAINST: Judge Oda



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(C) By fifteen votes to one, Finds that the Application of the Democratic Republic of Congo is ­admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula Bula, Van den Wyngaert AGAINST: Judge Oda (2) By thirteen votes to three, Finds that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal; Judges ad hoc Bula Bula, Van den Wyngaert AGAINST: Judge Oda Al-Khasawneh, Judge ad hoc Bula Bula, Van den ­Wyngaert (3) By ten votes to six, Finds that the Kingdom of Belgium must, by means of its own choosing cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated. IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Rezek, Judge ad hoc Bula Bula AGAINST: Judges Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal; Judge ad hoc, Van den Wyngaert Declarations/Opinions Separate Opinion

President Guillaume

Dissenting Opinion

Judge Oda

Declaration

Judge Ranjeva

Separate Opinion

Judge Koroma

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Declarations/Opinions (cont.) Joint Separate Opinion

Judges Higgins, Kooijmans and Buergenthal

Separate Opinion

Judge Rezek

Dissenting Opinion

Judge Al-Khasawneh

Separate Opinion

Judge ad hoc Bula Bula

Dissenting Opinion

Judge ad hoc van den Wyngaert

Sources of Law UN Charter

Art. 2(1), p. 6(1), 10(17) Chapter VII of the UN Charter, p. 25(61)

ICJ Statute

Art. 31(3), p. 6(3) Art. 36(2), p. 13(27) Art. 40(2), p. 6(2) Art. 40(3), p. 6(3) Art 41, p. 6(4), 10(18)

ICJ Rules of Court

Art. 53(2), p. 7(7) Art. 61(4), p. 7(9) Art. 72, p. 7(9)

PCIJ case-law

Factory at Chorzów, [P.C.I.J., Series A, No. 17, p. 47], p. 32(71) Société commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173], p. 16(36)

ICJ case-law

Current Order of 8 December 2000, p. 6(4), 11(18) Order of 13 December 2000, p. 6(4) Order of 14 March 2001, p. 6(5) Order of 12 April 2001, p. 6(5, 6) Order of 27 June 2001, p. 6(6) Previous Northern Cameroons, [I.C.J. Reports 1963, p. 38], p. 14(30) Nuclear Tests (Australia v. France), [I.C.J. Reports 1974, p. 270– 71(55)], p. 12(24), 14(30) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 476(58)], p. 12(24) Nottebohm, [I.C.J. Reports 1953, p. 122], p. 13(26) Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, [I.C.J. Reports 1960, p. 142], p. 13(25)



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Sources of Law (cont.) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, [I.C.J. Reports 1992, p. 23–24 (38)], p. 13(26, 27), 15(32), 18(40) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. USA), Preliminary Objections, Judgment, [I.C.J. Reports 1992, p. 129(37)], p. 13(26, 27), 15(32), 18(40) Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, [I.C.J. Reports 1998, p. 447–48(29)], p. 15(34) Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1984, p. 427(80)], p. 16(36) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 264–267 (69–70)], p. 16(36) Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, [I.C.J. Reports 1974, p. 203(72)], p. 16(36) Temple of Preah Vihear, Merits, Judgment, [I.C.J. Reports 1962, p. 36), p. 16(36) Interhandel, Preliminary Objections, Judgment, [I.C.J. Reports 1959, p. 26], p. 17(40) Elettronica Sicula S.p. A. (ELSI), Judgment, [I.C.J. Reports 1989, p. 42(49)], p. 17(40) Asylum (Colombia v. Peru), Judgment, [I.C.J. Reports 1950, p. 402], p. 19(43) Treaties

1961 Vienna Convention on Diplomatic Relations, p. 6(1), 10(18), 21(52) 1963 Vienna Convention on Consular Relations, p. 21(52) 1960 New York Convention on Special Mission of 8 December 1969, p. 21(52) 1969 Vienna Convention on the Law of Treaties, p. 22(53) 1949 Geneva Conventions, p. 9(13, 15), 28(67) 1977 Additional Protocols to the Geneva Conventions, p. 9(13, 15), 28(67) Statute of the International Criminal Court, p. 24(58), 25(61)

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Sources of Law (cont.) Statute of the Special Court for Sierra Leone, p. 24(58) Charter of the International Military Tribunal of Nuremberg, p. 24(58) Charter of the International Military Tribunal of Tokyo, p. 24(58) Declaration

Belgium declaration under Art. 36(2) of the ICJ Statute of 17 June 1958, p. 13(27) Congo (then Zaire) declaration under Art. 36(2) of the ICJ Statute of 8 February 1989, p. 13(27)

Inter(national) legal Belgian Law, p. 9(15) references 1999 Decision of the House of Lords in the case of Pinochet on 24 March 1999, p. 23(56, 57) 2001 Decision of the Court of Cassation in France in the Qaddafi case, p. 23(56, 57)

Representation of Parties Democratic Republic of the Congo Agent

H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and Plenipotentiary of the Democratic Republic of the Congo to the Kingdom of the Netherlands,

Counsel & Advocates

H.E. Mr. Ngele Masudi, Minister of Justice and Keeper of the Seals, Maitre Kosisaka Kombe, Legal Adviser to the Presidency of the Republic, Mr. Francois Rigaux, Professor Emeritus at the Catholic University of Louvain, Ms. Monique Chemillier-Gendreau. Professor at the University of Paris VII (Denis Diderot), Mr. Pierre d’Argent, Chargé de cours, Catholic University of Louvain, Mr. Moka N’Golo, Bâtonnier, Mr. Djeina Wembou, Professor at the University of Abidjan,

Counseller

Mr. Mazyambo Mirkengo, Legal Adviser to the Ministry of Justice, Mr. Akele Adau, Professor and Honorary Dean of the Law Faculty of the University of Kinshasa, President of the Military High Court,



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Belgium Agent

Mr. Jan Devadder, Director-General, Legal Matters, Ministry of Foreign Affairs.

Counsel & Advocates Mr. Eric David, Professor of Public International Law, Université libre de Bruxelles, Mr. Daniel Bethlehem, Barrister, Bar of England aiid Wales, Fellow of Clare Hall and Deputy Director of the Lauterpacht Research Centre for International Law, University of Cambridge, H.E. Baron Olivier Gillès de Pélichy, Permanent Representative of the Kingdom of Belgium to the Organization for the Prohibition of Chemical Weapons. responsible for relations with the International Court of Justice, Mr. Claude Debrulle, Director-General. Criminal Legislation and Human Rights, Ministry of Justice, Mr. Pierre Morlet, Advocate-General, Brussels Cour d’Appel, Mr. Wouter Detavernier, Deputy Counsellor, DirectorateGeneral Legal Matters, Ministry of Foreign Affairs, Mr. Rodney Neufeld, Research Associate, Lauterpacht Research Centre for International Law, University of Cambridge, Mr. Tom Vanderhaeghe. Assistant at the Universi é libre de Bruxelles.

APPLICATION FOR REVISION OF THE JUDGMENT OF 11 JULY 1996 IN THE CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (Yugoslavia v. Bosnia and Herzegovina) General List No.: 122 Mean(s) and date of institution of the case: Application (24 April 2001) Statement of claim/question: FR Yugoslavia “For the reasons advanced in its Application of 23 April 2001 and in its pleadings during the oral proceedings held from 4 to 7 November 2002, the ­Federal Republic of Yugoslavia respectfully requests the Court to adjudge and declare: – that there are newly discovered facts of such a character as to lay the 11 July 1996 Judgment open to revision under Article 61 of the Statute of the Court; and – that the Application for Revision of the Federal Republic of Yugoslavia is therefore admissible. Basis of jurisdiction invoked by the Applicant(s): Art. 61 of the ICJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

24 April 2001 to 3 February 2003

Preliminary Objections

24 April 2001 to 3 February 2003 (1 year / 9 months / 3 days)

Public sittings 4, 5, 6 and 7 November 2002



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Request for extension of time-limits State Party

Remarks

Bosnia and Herzegovina (1 time)

Date of Order and Authority 26 April 2001 Letter of Registrar Couvreur conveying Court’s fixation of time-limits

6. Request for filing of written observations by 1 December 2001 – no objection by the FR Yugoslavia Content Fixing of time-limits 30 September 2001 – time-limit for Bosnia and Herzegovina to file written observations on the admissibility of the Application

21 August 2001 Extension of time-limits: Letter of the First Secretary of the 3 December 2001 – Written observations of Court in charge of Information Bosnia and Herzegovina Matters, acting Registrar conveying President’s extension of time-limit

Section B – Preliminary Objections Official citation: Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), ­Preliminary Objections, (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 7 Date of order: 3 February 2003 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Koroma, Vereshchetin, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Dimitrijević, Mahiou; Registrar Couvreur. Headnotes: Article 61 of the Statute – Application for revision – Parties’ arguments as to whether there is a “fact” which, although in existence at the date of the Court’s Judgment of 11 July 1996, was at that time unknown both to the FRY and to the Court – Whether the FRY relies on facts which fall within the terms of Article 61 of the Statute – Characteristics which a “new” fact within the meaning of Article 61 must possess – Admission of the FRY to the United Nations occurred well after

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the 1996 Judgment and cannot be regarded as such a new fact – FRY’s Application for revision is based on the legal consequences which it seeks to draw from facts subsequent to the Judgment – Those consequences which cannot, even supposing them to be established, be regarded as facts within the meaning of Article 61 – Situation created by General Assembly resolution 47/1 of 22 September 1992 – Sui generic position of the FRY was known to the Court and to the FRY when the 1996 Judgment was given – General Assembly resolution 55/12 of 1 November 2000 cannot have changed retroactively this sui generic position – Legal Counsel’s letter of 8 December 2000 cannot have affected the FRY’s position in relation to treaties – Lack of discovery of “some fact” which was “when the judgment was given, unknown to the Court and also the party claiming revision” – No need to examine whether the other requirements of Article 61 have been satisfied. Text of the operative paragraph(s) (p. 32, para. 75) THE COURT By ten votes to three, Finds that the Application submitted by the Federal Republic of Yugoslavia for revision, under Article 61 of the Statute of the Court, of the Judgment given by the Court on 11 July 1996, is inadmissible. IN FAVOUR: President Guillaume; Vice-President Shi; Ranjeva Judges Ranjeva, Herczegh, Koroma, Parra-Aranguren, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Mahiou; AGAINST: Judges Vereshchetin, Rezek; Judge ad hoc Dimitrijević Declarations/Opinions Separate Opinion

Judges Koroma, Judge ad hoc Mahiou

Dissenting Opinion

Judge Vereshchetin, Judge ad hoc Dimitrijević

Declaration

Judge Rezek

Sources of Law UN Charter

Art. 2(1), p. 102–3(1), 107(22), Art. 4, p. 16–17(31)

ICJ Statute

Art. Art. Art. Art.

31(3), p. 10(8) 35, p. 26(57) 41, p. 26(56), 102, (6), 107(22), 1123(41) 48, p. 102



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Sources of Law (cont.) Art. 40(2), p. 9(2) Art. 40(3), p. 9(2) Art. 61, p. 9(1), 10(11, 13), 11(14, 15, 16), 12(17, 19), 13(22), 30(65, 67, 68, 69), 32(73, 75) Art. 61(1), p. 30(66, 67), 31(72) Art. 61(2), p. 13(21), 30(67) ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

PCIJ case-law

Wimbledon, p. 26–27(57)

ICJ case-law

Current Order of 8 April 1993, p. 26(57), p. 28–29(62)

31(2), p. 104(8) 38(5), p. 102, 103(3, 5, 6), 106(21) 73, p. 102, 74, p. 102 74(2), p. 103–4(7) 74(3), p. 103–4(7) 53(1), p. 9(4) 53(2), p. 10(9) 79(1), p. 28(60) 99, p. 11(15) 99(2), p. 9(3) 99(3), p. 9(7)

Order of 13 September 1993, p. 27(59) Order of 17 December 1997, p. 29(64) Previous Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, [I.C.J. Reports 1996(II), p. 595)], p. 9(1), 12(18, 19), 13(21), 14(24), 26(54), 28(61, 62), 29(63), 30(66, 68) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya) (Tunisia v. Libya), Judgment, [I.C.J. Reports 1985, p. 197(8)], p. 11(15), [I.C.J. Reports 1985, p. 207(29)], p. 32(73) Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, [I.C.J. Reports 1986, p. 9(18)], p. 111(39) Reservations to the Convention on Genocide, [I.C.J. Reports 1951, p. 24], p. 28–29(62) Treaties

1984 UN Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment of 10 December 1984, p. 105(13)

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Sources of Law (cont.) Genocide Convention, p. 12(18), 13(21), 13–14(23), 20(40), 24(52), 25(53), 26(55), 26–27(57), 27(59), 28(62), 29(63), 30(66, 69), 31(70, 71 1995 General Framework Agreement for Peace in Bosnia and Herzegovina of 21 November 1995, p. 20(40) Inter(national) legal General Assembly resolutions references 47/1 of 22 September 1992, p. 16(29, 30, 31), 17(33, 34), 18(35, 37, 38), 21(44), 26(57), 31(70 43/223 of 21 December 1988, p. 22(45) 46/221 of 20 December 1991, p. 22(45) 47/229 of 29 April 1993, p. 17(32) 49/19B of 23 December 1994, p. 22(47) 52/15A, p. 22(47) 55/12 of 1 November 2000, p. 23(50), 31(71) 55/5E of 23 December 2000, p. 23(48) Security Council resolution 713(1991) of 25 September 1991, p. 15(28) 757(1992), p. 15(28) 777(1992) of 19 September 1992, p. 15(28), 16(30), 18(35, 37), 21(44), 23(49), 26(57) 821(1993) of 29 April 1993, p. 17(32) UN documents A/46/915, Ann. II, p. 14(26), 15(27) A/47/11, p. 22(46) A/47/474, p. 16(30) A/47/485, p. 16–17(31) A/50/790-S/1995/999, p. 20(40) A/50/910S/1996, 231, p. 19–20(39) A/50/928-S/1996/263, p. 19–20(39) A/50/930-S/1996/260, p. 19–20(39) A/51/95-S/1996/251, p. 19–20(39) A/53/992, p. 20–21(42) A/55/528-S/2000/1043, p. 23(49) A/55/PV.48, p. 23–24(50) A/RES/48/88, p. 17(34) C.N.164.2001.Treaties-1, p. 24–25(52) C.N.311.1999.Treaties-1, p. 20(41) CCPR/SP/SR.18, p. 18(36) CCPR/SP/SR.19, p. 18(36) S/1999/639, p. 21(43) S/RES/1326, p. 23(50) ST/LEG/7/Rev.1, p. 19–20(39) ST/LEG/8, p. 18–19(38) ST/LEG/SER.E/20, p. 21–22(44)



Judgment of 11 July 1996, Prevention and Punishment of the Crime of Genocide (Yugoslavia v. Bosnia and Herzegovina)

437

Sources of Law (cont.) Others 8 April 2003 Letter from the Foreign Minister of France to the Court Application for a judicial investigation of the alleged offences issued on 23 January 2002 issued by the Procureur de Républic of the Meaux Tribunal de grande instance, p. 104(10), 105(11, 12, 13 Article 656 of the Code of Criminal Procedure, p. 106(16), 109(31, 32), 111(37) Article 689(1) of French Code of Criminal Procedure, p. 105(11, 12, 13) Articles 689(2) of French Code of Criminal Procedure, p. 105(11, 12) Letter from the UN USG and Legal Counsel to the Permanent Representatives of Bosnia and Herzegovina and Croatia of 29 September 1992, p. 16(31) Letter from UN USG and Legal Counsel to the Minister for Foreign Affairs of Former Yugoslavia of 8 December 2000, p. 24(51), 30(69), 31(71) Notice of Succession transmitted by Bosnia and Herzegovina of 29 December 1992, p. 26–27(57) Notification of Accession to the UN by Yugoslavia of 6 March 2001, p. 24(52) Official Note from the Permanent Mission of Yugoslavia to the UN of 27 April 1992, p. 15(27), 26–27(57) UN Financial Regulation 5.2(c), p. 23(48) UNSG Depository Notification of 18 March 1993, p. 28(62)

Representation of Parties FR Yugoslavia Agent

Mr. Tibor Varady, S.J.D.(Harvard), Chief Legal Adviser at the Federal Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, Professor of Law at the Central European University, Budapest and Emory University, Atlanta

Co-agent

Mr. Vladimir Djerić, LL.M (Michigan), Adviser to the Minister for Foreign Affairs of the FR Yugoslavia

Counsel & Advocate Mr. Andreas Zimmermann, LL.M. (Harvard), Professor of Law, University of Kiel, Director of the Walther-Schucking Institute

438

Judgment of 11 July 1996, Prevention and Punishment of the Crime of Genocide (Yugoslavia v. Bosnia and Herzegovina)

FR Yugoslavia (cont.) Adviser

Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, Member of the English Bar, Emeritus Chichele Professor of Public International Law, Oxford

Assistants

Mr. Dejan Ukropina, Attorney from Novi Sad Mr. Robin Geiss, Assistant at the Walther-Schucking Institute, University of Kiel Mr. Marko Mićanović, LLM (New York University) Mr. Slavoljub Caric, Counsellor of the Embassy of the FR Yugoslavia in the Hague Mr. Miodrag Pančeski, First Secretary, Embassy of the FR Yugoslavia in the Hague

Bosnia and Herzegovina Agent

Mr. Sakib Softić

Deputy agent

Mr. Phon van den Biesen, van den Biesen Advocaten, Amsterdam

Counsel & Advocate Mr. Alain Pellet, Professor, University of Paris X-Nanterre, Member and Former Chairman, International Law Commission Counsel

Mr. Antoine Ollivier Mr. Wim Muller

CASE CONCERNING CERTAIN PROPERTY (Liechtenstein v. Germany) General List No.: 123 Mean(s) and date of institution of the case: Application (1 June 2001) Statement of claim/question: Liechtenstein requested the Court to adjudge and declare: “(1) by its conduct with respect to Liechtenstein and the Liechtenstein property, Germany has failed to respect the sovereignty and neutrality of Liechtenstein and the legal rights of Liechtenstein and its nationals with respect to the property; (2) by its failure to make compensation for losses suffered by Liechtenstein and its nationals, Germany is in breach of the rules of international law; (3) consequently Germany has incurred international legal responsibility and is bound to provide appropriate assurances and guarantees of non­repetition, and to make appropriate reparation to Liechtenstein for the damage and prejudice suffered. (4) Liechtenstein further requests that the amount of compensation should, in the absence of agreement between the Parties, be assessed and determined by the Court in a separate phase of proceedings. Liechtenstein respectfully submitted (1) that the Court has jurisdiction over the claims presented in the Application of the Principality of Liechtenstein, and that they are admissible; and correspondingly; (2) that the Preliminary Objections of Germany be rejected in their entirety.” Basis of jurisdiction invoked by the Applicant(s): Art. 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957

Certain Property (Liechtenstein v. Germany)

440

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

1 June 2001 to 10 February 2005

Preliminary Objections

27 June 2002 to 10 February 2005

Public sittings 14, 16, 17 and 18 June 2004

Orders Date of Order and Authority

Content

28 June 2001 President – Guillaume

Fixing of time-limits: 28 March 2002 – Memorial of Liechtenstein 27 December 2002 – Counter-Memorial of Germany

12 July 2002 President – Guillaume

Fixing of time-limits: 15 November 2002 – written statement by Liechtenstein of its observation and submission on the Preliminary Objections raised by Germany

Section B – Preliminary Objections Official citation: Certain Property (Liechtenstein v. Germany), Preliminary Objections, I.C.J. Reports 2005, p. 6 Date of order: 10 February 2005 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby, Owada, Tomka; Judges ad hoc Fleischhauer, Sir Franklin Berman; Registrar Couvreur. Headnotes: Historical background – Confiscation by Czechoslovakia in 1945 under the Beneš Decrees of property belonging to Prince Franz Josef II of Liechtenstein – Special regime with regard to German external assets and other properties seized in connection with the Second World War War – Article 3, paragraphs 1 and 3, of Chapter Six of the Settlement Convention – Final Settlement with respect to Germany. Pieter van Laer painting confiscated under the Beneš Decrees – Claim by Prince Hans-Adam II of Liechtenstein for the return of the painting dismissed



Certain Property (Liechtenstein v. Germany)

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by German courts in 1990s on the basis of Article 3, Chapter six of the Settlement Convention – Claim brought by Prince Hans-Adam II of Liechtenstein before the European Court of Human Rights dismissed. Jurisdiction of the Court based on Article 1 of the European Convention for the Peaceful Settlement of Disputes – Limitation ratione temporis contained in Article 27(a) of that Convention. Six preliminary objections to the jurisdiction of the Court and the admissibility of the Application raised by Germany. Germany’s first preliminary objection. Contention by Germany that there is no dispute between the Parties – No “change of position” with regard to Germany’s treatment of Liechtenstein property confiscated in connection with the Second World War said to have occurred – Germany has never accepted the validity of the Beneš confiscations – German courts have consistently held that they are barred by the Settlement Convention by adjudicating on the lawfulness of confiscation measures resulting from the Second World War – According to Germany, the only dispute is between Liechtenstein and the successor States of Czechoslovakia. Contention by Liechtenstein that there is a dispute between the Parties – Germany said to have allowed, for the first time in 1995, Liechtenstein assets to be treated as German external assets for purposes of Settlement Convention – Existence of a separate dispute between Liechtenstein and Germany – According to Liechtenstein, Germany has itself acknowledged the existence of the dispute – Germany denies any such acknowledgment. Jurisprudence of the Court and its predecessor regarding the question of the existence of a dispute – Complaints of fact and law formulated by Liechtenstein against Germany denied by the latter – A legal dispute exists between the Parties – Germany’s position in course of bilateral consultations has evidentiary value in this regard – Subject-matter of the dispute – First preliminary objection dismissed. Germany’s second preliminary objection. Contention by Germany that the Court lacks jurisdiction ratione temporis on the basis of Article 27(a) of the European Convention for the Peaceful Settlement of Disputes – Were the Court to find that there exists a dispute, it would according to Germany, relate to the Settlement Convention and the Beneš Decrees, which predate the critical date, i.e. the entry into force of the European Convention for the Peaceful Settlement of Disputes as between Liechtenstein and Germany (18 February 1980) – German courts said to have consistently held that they lacked jurisdiction under the Settlement Convention to evaluate the lawfulness of confiscations effected in connection with the Second World War.

442

Certain Property (Liechtenstein v. Germany)

Contention by Liechtenstein that the Court has jurisdiction ratione temporis – Allegation that until the decisions in the Pieter van Laer Painting case, it was understood between the Parties that Liechtenstein property confiscated pursuant to the Beneš Decrees could not be deemed to have been covered by the Settlement Convention – Pieter van Laer Painting case and position taken by the German Government after 1995 said to have triggered the dispute. Parties’ interpretation of jurisprudence of the Court and its predecessor regarding the legal test for temporal jurisdiction. Need for the Court to determine whether the dispute relates to facts or situations that arose before or after the critical date – Phosphates in Morocco case – Electricity Company of Sofia and Bulgaria case – Right of Passage case – Text of Article 27(a) of the European Convention for the Peaceful Settlement of Disputes does not differ in substance from temporal jurisdiction limitations dealt with in those cases – Test of finding the source or real cause of the dispute used in previous case law equally applicable in current instance – No common understanding between Liechtenstein and Germany that the Settlement Convention did not apply to Liechtenstein property – German courts have consistently held that the Settlement Convention deprived them of jurisdiction to address the legality of any confiscation of property treated as German property by the confiscating State – German courts did not face any “new situation” when dealing for the first time with a case concerning the confiscation of Liechtenstein property as a result of the Second World War – Inextricable link to the Settlement Convention and the Beneš Decrees are the real cause of dispute – In light of the provisions of Article 27(a) of the European Convention for the peaceful Settlement of Disputes, the second preliminary objection has to be upheld – Court not required to consider Germany’s other preliminary objections – No jurisdiction to entertain the case. Text of the operative paragraph(s) (p. 27, para. 53) THE COURT Unanimously, (1) (a) by fifteen votes to one, Rejects the preliminary objection that there is no dispute between Liechtenstein and Germany; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Tomka; Judge ad hoc Sir Franklin Berman AGAINST: Judge ad hoc Fleischhauer

Certain Property (Liechtenstein v. Germany)



443

(b) by twelve votes to four, Upholds the preliminary objection that Liechtenstein’s Application should be rejected on the grounds that the Court lacks jurisdiction ratione temporis to decide the dispute; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal, Tomka; Judge ad hoc Fleischhauer AGAINST: Judge Kooijmans, Elaraby, Owada Judge ad hoc Sir Franklin Berman (b) by twelve votes to four, Finds that it has no jurisdiction to entertain the application filed by Liechtenstein on 1 June 2001. IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal, Tomka; Judge ad hoc Fleischhauer AGAINST: Judge Kooijmans, Elaraby, Owada Judge ad hoc Sir Franklin Berman Declarations/Opinions Dissenting Opinions

Judges Kooijmas, Elaraby and Owada

Declaration

Judge ad hoc Fleischhauer

Dissenting Opinion

Judge ad hoc Sir Franklin Berman

Sources of Law ICJ Statute

Art. Art. Art. Art. Art.

17(2), p. 11(7) 31(2), p. 10(4) 31(3), p. 11(7) 40(2), p. 10(2) 40(3), p. 10(3)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art.

37(1), p. 11(7) 53(1), p. 10(5) 53(2), p. 11(8) 38(2), p. 16(19) 79(1), p. 10(3, 6) 79(5), p. 10(6)

PCIJ case-law

Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 11], p. 18(24) Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p.29], p. 21(34), 22(37, 40), 24(43), 25(45) Electricity Company of Sofia and Bulgaria, [P.C.I.J. Series A/B No. 77, p. 82], p. 21(34, 36), 22(37), 23(41), 24(43), 25(45)

444

Certain Property (Liechtenstein v. Germany)

Sources of Law (cont.) ICJ case-law

Current Case Order of 28 June 2001, p. 10(3) Order of 12 July 2002, p. 10(6) Other case Northern Cameroons, [I.C.J. Reports 1963, p. 37], p. 18(24) Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, [I.C.J. Reports 1988, p. 27], p. 18(24) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 99–100(22)], p. 18(24), 19(25) Admissibility of Hearings of Petitioners by the Committee on South West Africa, Preliminary Objections, [I.C.J. Reports 1962, p. 328], p. 18(24) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, [I.C.J. Reports 1996, p. 615(29)], p. 19(25) Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 33], p. 21(34), 23(42), 24(43), 25(45)

Treaties

1957 European Convention for the Peaceful Settlement of Disputes of 29 April 1957, p. 10(1), 12(11), 15(18), 16(19), 21(34, 35), 22(38, 39), 24(43), 25(48), 26(52) 1952 Convention on the Settlement of Matters arising out of the War and the Occupation between USA, UK, France and FR Germany of 26 May 1952 (Settlement Convention), p. 14(14), 15(16), 17(21), 18(25), 19(26), 21(33), 22(38), 25(49, 50), 26(51, 52) 1954 Protocol to the Convention on the Settlement of Matters arising out of the War and the Occupation between USA, UK, France and FR Germany of 26 May 1952 of 23 October 1954, p. 14(14) 1990 Treaty of the Final Settlement of 15 March 1991 between former Occupying Powers and the FR Germany and German Democratic Republic, p. 14(15) 1990 Exchange of Notes between the three Western Powers and the FR Germany of 27 and 28 September 1990, p. 15(15) Convention for the Protection of Human Rights and Fundamental Freedom of the Council of Europe, p. 15(17) Protocol 1 to Convention for the Protection of Human Rights and Fundamental Freedom of the Council of Europe, p. 15(17)



Certain Property (Liechtenstein v. Germany)

445

Sources of Law (cont.) Inter(national) legal 1945 BeneŠ Decree of 21 June 1945, p. 13(13), 15(16), 17(21), references 18(25), 19(26), 20(31), 21(33), 22(38), 26(50, 51) 1995 Dismissal of Claim by the Cologne Regional Court of 10 October 1995, p. 15(16), 20(31) 1996 Dismissal of Claim by the Cologne Court of Appeal of 9 July 1996, p. 15(16), 20(31) 1997 Dismissal of Claim by the Federal Court of Justice of 25 September 1997, p. 15(16), 20(31) 1998 Dismissal of Claim by the Federal Constitutional Court of 28 January 1998, p. 15(16), 20(31) 1960 Judgment of the German Federal Court of Justice of 11 April 1960, II ZR 64/58, p. 26(50) 1956 Judgment of the German Federal Court of Justice of 13 December 1956 (AKU case), II ZR 86/54, p. 26(50)

Representation of Parties Liechtenstein Agents

H.E. Mr. Alexander Goepfert, Freshfields Bruckhaus Deringer, Düssedorf, Special Commissioner of the Principality of Liechtenstein

Advocate

H.E. Mr. Roland Marxer, Ambassador, Director of the Office for Foreign Affairs of the Principality of Liechtenstein

Counsel & Advocates

Mr. Dieter Blumenwitz, Professor of Public International Law, Universities of Würzburg and Munich Mr. Thomas Bruha, Professor of Public Law, University of Hamburg Mr. James Crawford, S.C. Whewell Professor of International Law, University of Cambridge, member of the English and Australian Bars, Member of the Institute of International Law Mr. Gerhard Hafner, Professor of Public International Law, University of Vienna, Associate Member of the Institute of International Law Mr. Alain Pellet, Professor of International Law, University of Paris X-Nanterre, member and former Chairman of the International Law Commission

Advocates

Mr. Malcolm Forster, Professor of International Law, University College London, Freshfields Bruckhaus Deringer, London

446

Certain Property (Liechtenstein v. Germany)

Liechtenstein (cont.) Ms. Juliane Hilf, Member of the Chamber of Lawyers of Germany, Freshfields Bruckhaus Deringer, Cologne Ms. Lucy Reed, Member of the State Bar of New York, Freshfields Bruckhaus Deringer, New York Advisers

Mr. Daniel Müller, temporary Lecturer and Research Assistant, University of Paris X-Nanterre Mr. Stefan Wittich, Assistant Professor, University of Vienna

Assistants

Ms. Nadine Heider, Freshfields Bruckhaus Deringer, Cologne Ms. Gabriele Klein, Freshfields Bruckhaus Deringer, Düssedorf

Information Officers Mr. Thomas Dillmann, ECC Kohtes Klewes Mr. Thomas Pütz, ECC Kohtes Klewes

Germany Agents

Mr. Thomas Läufer, Director General for Legal Affairs and Legal Adviser, Federal Foreign Office, H.E. Mr. Edmund Duckwitz, Ambassador of the Federal Republic of Ger­many to the Kingdom of the Netherlands,

Counsel

Mr. Jochen Frowein, Director Emeritus of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Professor of Public International Law, University of Heidelberg Mr. Christian Tomuschat, Professor of Public International Law, Humboldt University, Berlin Mr. Pierre-Marie Dupuy, Professor of Public International Law, University of Paris (Panthéon-Assas) and the European University Institute, Florence

Advisers

Mr. Daniel Erasmus Khan, Privatdozent, Visiting Professor, Bayreuth University Mr. Andreas Paulus, University of Munich Ms. Karin Oellers-Frahm, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Professor of Public International Law, University of Heidelberg Ms. Susanne Wasum-Rainer, Head of the Public International Law Division Office, Federal Foreign Office Mr. Reinhard Hassenpflug, Federal Foreign Office Mr. Götz Reimann, Embassy of the Federal Republic of Germany in the Hague

Assistant

Ms. Fionna Sneddon

TERRITORIAL AND MARITIME DISPUTE (Nicaragua v. Colombia) Status: Case Pending as of 31 December 2010 General List No.: 124 Mean(s) and date of institution of the case: Application (6 December 2001) Statement of claim/question: Nicaragua requested the Court to adjudge and declare that: (1) the Republic of Nicaragua has sovereignty over the islands of San Andrés, Providencia, and Santa Catalina and the appurtenant islets and cays; (2) the Republic of Nicaragua has sovereignty over the following cays: the Cayos de Albuquerque; the Cayos del Este Sudeste; the Cay of Roncador; North Cay, Southwest Cay and any other cays on the bank of Serrana; East Cay, Beacon Cay and any other cays on the bank of Serranilla; and Low Cay and any other cays on the bank of Bajo Nuevo; (3) if the Court were to find that there are features on the bank of Quitasueño that qualify as islands under international law, the Court is requested to find that sovereignty over such features rests with Nicaragua; (4) the Barcenas-Esguerra Treaty signed in Managua on 24 March 1928 was not legally valid and, in particular, did not provide a legal basis for Colombian claims to San Andrés and Providencia; (5) in case the Court were to find that the Barcenas-Esguerra Treaty had been validly concluded, then the breach of this Treaty by Colombia entitled Nicaragua to declare its termination; (6) in case the Court were to find that the Barcenas-Esguerra Treaty had been validly concluded and were still in force, then to determine that this Treaty did not establish a delimitation of the maritime areas along the 82° meridian of longitude West; (7) in case the Court finds that Colombia has sovereignty in respect of the islands of San Andrés and Providencia, these islands be enclaved and accorded a territorial sea entitlement of twelve miles, this being the appropriate equitable solution justified by the geographical and legal framework;

Territorial and Maritime Dispute (Nicaragua v. Colombia)

448

(8) the equitable solution for the cays, in case they were to be found to be Colombian, is to delimit a maritime boundary by drawing a 3 nautical mile enclave around them; (9) the appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a single maritime boundary in the form of a median line between these mainland coasts.” Basis of jurisdiction invoked: Article XXXI of the American Treaty on Pacific Settlement of 30 April 1948 and declarations made by Nicaragua and Colombia under Article 36 of the PCIJ Statute Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

6 December 2001 to continues

Preliminary objections

21 July 2003 to 13 December 2007

Public sittings 4–8 June 2007

(4 years / 4 months / 22 days)

Orders Date of Order and Authority

Content

26 February 2002 Court – President Shi

Fixing of time-limits: 28 April 2003 – Memorial of Nicaragua 28 June 2004 – Counter-Memorial of Colombia

24 September 2003 Court – President Shi

Fixing of time-limits: 26 January 2004 – Filing by Nicaragua of written statement of its observations and submissions on the preliminary objections made by Colombia

11 February 2008 Court – President Higgins

Fixing of time-limits: 11 November 2008 – Filing of Counter-Memorial of Colombia

18 December 2008 Court – President Higgins

Directs submission of 18 September 2009 – Reply of Nicaragua 18 June 2010 – Rejoinder of Colombia



Territorial and Maritime Dispute (Nicaragua v. Colombia)

449

Section B – Preliminary Objections Official citation: Case Concerning the Territorial and Maritime Dispute, Nicaragua v. Colombia, Preliminary Objections, I.C.J. Reports 2007, p. 832 Date of Judgment: 13 December 2007 Authoritative text: French Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, BuergenthaL, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Fortier, Gaja; Registrar Couvreur. Text of the operative paragraph(s) (p. 875, paragraph 142) THE COURT, (1) As regards the first preliminary objection to jurisdiction raised by the Republic of Colombia on the basis of Articles VI and XXXIV of the Pact of Bogotá: (a) By thirteen votes to four, Upholds the objection to its jurisdiction in so far as it concerns sovereignty over the islands of San Andrés, Providencia and Santa Catalina; IN FAVOUR: President Higgins; Judges Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Keith, Sepúlveda-Amor, Skotnikov; Judges ad hoc Fortier, Gaja AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Abraham, Bennouna (b) Unanimously, Rejects the objection to its jurisdiction in so far as it concerns sovereignty over the other maritime features in dispute between the Parties; (c) Unanimously, Rejects the objection to its jurisdiction in so far as it concerns the maritime delimitation between the Parties; (2) As regards the second preliminary objection to jurisdiction raised by the Republic of Colombia relating to the declarations made by the Parties recognizing the compulsory jurisdiction of the Court: (a) By fourteen votes to three, Upholds the objection to its jurisdiction in so far as it concerns sovereignty over the islands of San Andrés, Providencia and Santa Catalina;

450

Territorial and Maritime Dispute (Nicaragua v. Colombia)

IN FAVOUR: President Higgins; Judges Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Skotnikov; Judges ad hoc Fortier, Gaja AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Bennouna (b) By sixteen votes to one, Finds that it is not necessary to examine the objection to its jurisdiction in so far as it concerns sovereignty over the other maritime features in dispute between the Parties and the maritime delimitation between the Parties; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Fortier, Gaja AGAINST: Judge Simma (3) As regards the jurisdiction of the Court, (a) Unanimously, Finds that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning sovereignty over the maritime features claimed by the Parties other than the islands of San Andrés, Providencia and Santa Catalina; (b) Unanimously, Finds that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning the maritime delimitation between the Parties. Declarations/Opinions Dissenting Opinion

Vice-President Al-Khasawneh

Separate Opinion

Judge Ranjeva

Declaration

Judges Parra-Aranguren, Simma and Tomka

Separate Opinion

Judge Abraham

Declaration

Judge Keith

Dissenting Opinion

Judge Bennouna

Declaration

Judge ad hoc Gaja



Territorial and Maritime Dispute (Nicaragua v. Colombia)

451

Sources of Law PCIJ Statute

Art. 36, p. 835(1), 869(121)

ICJ Statute

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

1, p. 853(56) 36(5), p. 835(1), 869(121, 122), 870(122) 40(2, 3), p. 835(1) 63(1), p. 837(3) 34(3), p. 837(3) 31(3), p. 837(4) 36(2), p. 839(12, 13), 853(55), 860(123), 874(138) 40(1), p. 848(38) 36(6), p. 854(59) 36(4), p. 860(123)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art. Art. Art.

43, p. 835(1) 69(3), p. 837(3) 79(1, 5), p. 837(6) 53(1), p. 837(7) 56(4), p. 837(8) 53(2), p. 837(9) 79, p. 839(12), 851(47) 79(9), p. 840(12, 13), 850(46), 851(48), 872(131), 875(141) 60, p. 840(13) 79(1), p. 850(47)

PCIJ case-law

Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, [P.C.I.J., Series A, No. 6, p. 15], p. 852(51) Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Judgment, 1939, [P.C.I.J., Series A/B, No. 77, p. 76–77 and 84], p. 860(85) [P.C.I.J., Series A/B, No. 77, p. 76], p. 873(135)

ICJ case-law

Previous Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, [I.C.J. Reports 1998, p. 447–449, paras. 29–32], p. 848(38) Nuclear Tests (Australia v. France), Judgment, [I.C.J. Reports 1974, p. 262, para. 29], p. 848(38) [I.C.J. Reports 1974, p. 259, para. 22], p. 851(49) Nuclear Tests (New Zealand v. France), Judgment, [I.C.J. Reports 1974, p. 466, para. 30], p. 848(38) [I.C.J. Reports 1974, p. 463, para. 22], p. 851(49) South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, [I.C.J. Reports 1962, p. 328], p. 849(41) [I.C.J. Reports 1962, p. 328], p. 874(138)

452

Territorial and Maritime Dispute (Nicaragua v. Colombia)

Sources of Law (cont.) Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, [I.C.J. Reports 1972, p. 56], p. 850(46) Lockerbie cases (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, [I.C.J. Reports 1998, pp. 131 et seq., paras. 46 et seq.], p. 850–851(47) [I.C.J. Reports 1998, pp. 26 et seq., paras. 47 et seq.], p. 851(47) Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, [I.C.J. Reports 1963, p. 29], p. 851(49) Case concerning the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, [I.C.J. Reports 1960, p. 213–214], p. 858(76) Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, [I.C.J. Reports 2007, p. 596–597, paras. 31–33 and, p. 617–618, para. 98], p. 860(85) Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, [I.C.J. Reports 1996 (II), p. 810, para. 17, and p. 821, para. 55], p. 860(85) Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, [I.C.J. Reports 1994, p. 37, paras. 72–73], p. 861(89) Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1988, p. 82, para. 27, and p. 85, para. 36], p. 870(123) [I.C.J. Reports 1988, p. 90, para. 48], p. 870(132) [I.C.J. Reports 1988, p. 82, para. 27], p. 873(133) Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, [I.C.J. Reports 1950, p. 74], p. 874(138) Treaties

Article 18 of the Covenant of League of Nations, p. 859(78) 1948 Charter of Organization of American States, p. 852(54) 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, p. 842(18), 843(20, 21), 844(23), 845(26), 845(27, 28), 846(28, 30), 847(36), 848(37, 39, 40), 849(40, 43, 44), 850(44, 46), 851(47, 50), 852(51), 854(60, 61, 62, 63), 855(64, 65, 68, 69), 856(70, 71, 72), 857(73, 74, 75), 858(76, 78), 859(79, 80, 81, 82), 860(83, 84, 85, 86, 87), 861(87, 88, 89, 90, 91), 862(93, 94), 863(95, 97, 98, 99), 864(100, 101, 102), 865(104, 105, 106), 866(108, 111), 867(112, 114, 116), 868(117), 869(118, 120), 871(127), 872(131, 132), 874(138)



Territorial and Maritime Dispute (Nicaragua v. Colombia)

453

Sources of Law (cont.) 1930 Protocol of Exchange of Ratifications, p. 843(20, 21), 844(22, 23, 24), 845(26, 27), 846(30), 847(36), 848(40), 849(40), 849(43, 44), 851(47, 50), 852(51), 854(60, 61, 62), 855(68), 856(70), 857(74), 858(76), 859(79), 860(83, 84, 85), 862(94), 865(105, 106, 107), 863(108), 866(111), 867(114), 868(116), 869(119, 120), 871(127), 872(131) 1948 American Treaty on Pacific Settlement (also known as Pact of Bogotá), p. 835(1, 3), 839(12), 840(12, 13), 841(14), 848(39), 849(43, 44), 851(47), 852(50, 53, 54, 55), 853(57), 854(59, 60), 857(73), 858(76, 77, 78), 851(81, 82), 861(88, 89, 90, 91), 863(97, 98), 865(104, 105), 867(114), 869(120, 121), 870(123, 124, 125, 126), 871(126, 128), 872(130, 132, 133), 873(133, 134, 136, 137), 874(138), 875(142) 1972 Treaty concerning the status of Quitasueño, Roncador and Serrana (also known as Vásquez-Saccio Treaty), p. 844(25), 845(26, 27), 846(29), 859(79), 864(100, 102, 103), 1928 Treaty of the Roncador, Quitasueño and Serrana, p. 843(23) Inter(national) legal 1863 Constitution of United States of Columbia, p. 841(16) references 1886 Constitution of Republic of Columbia, p. 841(16) 1911 Constitution of Nicaragua, p. 857(75), 858(76) 1980 White paper of 4 February by Ministry of Foreign Affairs, Nicaragua, p. 845(28), 846(30) 1928 Notes concerning the status of Roncador, Quitasueño and Serrana by United States of America to Columbia, p. 842(19) 1928 Notes concerning the status of Roncador, Quitasueñe and Serrana by Columbia to United States of America, p. 842(19) 1969 Diplomatic Note of 4 June from the Ambassador of Colombia to the Minister for Foreign Affairs of Nicaragua, p. 843(21) 1969 Diplomatic Note of 12 June to the Ambassador of Colombia to the Minister for Foreign Affairs of Nicaragua, p. 843(22) 1969 Note of 22 September by the Minister for Foreign Affairs of Colombia, p. 844(23) 1971 Note of December 6 by the Secretary of State of the United States to the Ambassador of Nicaragua, p. 844(24) 1972 Diplomatic Notes the Minister for Foreign Affairs of Nicaragua sent diplomatic Notes to the Minister for Foreign Affairs of Colombia and the Secretary of State of the United States, p. 845(27)

454

Territorial and Maritime Dispute (Nicaragua v. Colombia)

Sources of Law (cont.) 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, p. 845(26) 1972 Notes of 8 September by Columbia to United States of America relating to legal position of Article 1 of 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, p. 845(26) 1993 Diplomatic Note of 11 June by Nicaragua to Minister for Foreign Affairs of Colombia, p. 846(31) 1993 Diplomatic Note of 9 July by Nicaragua Minister for Foreign Affairs of Colombia, p. 846(31) 1993 Diplomatic Note of 19 July by Minister for Foreign Affairs of Colombia to Nicaragua, p. 846(31) 1993 Diplomatic Note of 26 July by Minister for Foreign Affairs of Colombia to Nicaragua, p. 846(31)

Representation of Parties Nicaragua Agent & Counsel

H.E. Mr. Carlos Argüello Gómez, Ambassador of the Republic of Nicaragua to the Kingdom of the Netherlands,

Counsel and advocates

H.E. Mr. Samuel Santos, Minister for Foreign Affairs of the Republic of Nicaragua, Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United Nations International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de droit international, Distinguished Fellow, All Souls College, Oxford, Mr. Alex Oude Elferink, Research Associate, Netherlands Institute for the Law of the Sea, Utrecht University, Mr. Alain Pellet, Professor at the University Paris X-Nanterre, Member and former Chairman of the United Nations International Law Commission, Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid,

Assistant Advisors

Ms. Irene Blázquez Navarro, Doctor of Public International Law, Universidad Autónoma, Madrid, Ms. Tania Elena Pacheco Blandino, Counsellor, Embassy of Nicaragua in the Netherlands, Ms. Nadine Susani, Doctor of Public Law, Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre,



Territorial and Maritime Dispute (Nicaragua v. Colombia)

455

Colombia Agent

H.E. Mr. Julio Londoño Paredes, Ambassador of the Republic of Colombia to the Republic of Cuba,

Co-agent

H.E. Mr. Guillermo Fernández de Soto, Ambassador of the Republic of Colombia to the Kingdom of the Netherlands, member of the Permanent Court of Arbitration and former Minister for Foreign Affairs,

Counsel and advocates

Mr. Stephen M. Schwebel, member of the Bars of the State of New York, the District of Columbia, and the Supreme Court of the United States of America; member of the Permanent Court of Arbitration; member of the Institut de droit international, Sir Arthur Watts, K.C.M.G., Q.C., member of the English Bar; member of the Permanent Court of Arbitration; member of the Institut de droit international, Mr. Prosper Weil, Professor Emeritus, University of Paris II; member of the Permanent Court of Arbitration; member of the Institut de droit international; member of the Académie des Sciences Morales et Politiques (Institut de France),

Advocates

Mr. Eduardo Valencia-Ospina, Member of the United Nations International Law Commission, Mr. Rafael Nieto Navia, former Judge of the International Criminal Tribunal for the former Yugoslavia; former Judge of the Inter-American Court of Human Rights; member of the Permanent Court of Arbitration; member of the Institut de droit international, Mr. Andelfo García González, Professor of International Law, Deputy Chief of Mission of the Embassy of Colombia in the Kingdom of Spain, former Deputy Minister for Foreign Affairs, Republic of Colombia, Mr. Enrique Gaviria Liévano, Professor of Public International Law; former Ambassador and Deputy Permanent Representative of Colombia to the United Nations; former Chairman of the Sixth Committee of the United Nations General Assembly; former Ambassador of Colombia to Greece and to the Czech Republic, Mr. Juan Carlos Galindo Vacha, former Deputy InspectorGeneral before the Council of State of the Republic of Colombia, National Head of the Civil Registry,

Legal Advisers

Ms. Sonia Pereira Portilla, Minister Plenipotentiary, Embassy of Colombia in the Netherlands, Mr. Juan José Quintana, Minister Counsellor, Ministry of Foreign Affairs of the Republic of Colombia,

456

Territorial and Maritime Dispute (Nicaragua v. Colombia)

Colombia (cont.) Ms. Mirza Gnecco Plá, Counsellor, Ministry of Foreign Affairs of the Republic of Colombia, Mr. Julián Guerrero Orozco, Counsellor, Embassy of Colombia in the Netherlands, Ms. Andrea Jiménez Herrera, First Secretary, Ministry of Foreign Affairs of the Republic of Colombia, Ms. Daphné Richemond, member of the Bars of Paris and the State of New York, Technical Adviser

Mr. Scott Edmonds, Cartographer, International Mapping,

Stenographer

Ms. Stacey Donison

FRONTIER DISPUTE (Benin/Niger) General List No.: 125 Mean(s) and date of institution of the case: Special Agreement (3 May 2002) Statement of claim/question: The Court was requested to: (a) determine the course of the boundary between the Republic of Benin and the Republic of Niger in the River Niger sector; (b) specify which State owns each of the islands in the said river, and in ­particular Lété Island; (c) determine the course of the boundary between the two States in the River Mekrou sector. Basis of jurisdiction invoked by the Applicant(s): Special Agreement between Benin and Niger of 15 June 2001, with entry into force on 11 April 2002 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

3 May 2002 to 12 July 2005

Public sittings 7, 8, 10, 11 March 2005

3 years/ 2 months / 9 days

Orders Date of Order and Authority

Content

9 July 2004 President of the Chamber – Guillaume

Authorisation of filing of reply by both Parties and fixation of 17 December 2004 as the time-limit for the filing of the pleadings

11 September 2003 President of the Chamber – Guillaume

Fixing of time-limits: 28 May 2004 – Counter-Memorial by Benin and Niger

Frontier Dispute (Benin/Niger)

458 Orders (cont.) Date of Order and Authority 16 February 2005 President Shi

Content Constitution of new chamber of Judges (in view of resignation from the Chamber by its President Guillaume) consisting of President Ranjeva, Judges Kooijmans, Abraham and Judges ad hoc Bedjaoui and Bennouna

Section B – Merits Official citation: Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005, p. 90 Date of Judgment: 12 July 2005 Authoritative text: French Composition of the Court: Judge Ranjeva, Vice-President of the Court, President of the Chamber; Judges Kooijmans, Abraham; Judges ad hoc Bedjaoui, Bennouna; Registrar Couvreur. Headnotes: Geographical context – Historical background. Applicable law – Principle of uti possidetis juris – Course of the boundary to be determined by reference to the physical situation to which French colonial law was applied, as that situation existed at the dates of independence – Consequences of that course on the ground to be assessed in relation to present-day physical realities – Relevance of documents and maps posterior to dates of independence for purposes of applying the uti possidetis juris principle – Legal value of post-colonial effectivités. Place of colonial law (French droit d’outre-mer) – Powers of colonial authorities to create and abolish colonies and territorial subdivisions. Evolution of legal status of territories concerned. Principal documents relevant to the settlement of the dispute. Cartographic materials – Value of maps as evidence. Course of boundary in River Niger sector and the question of to which Party the islands in the river belong. Examination of regulative and administrative acts invoked by the Parties. Arrêté of 23 July 1900 of the Governor-General of French West Africa (AOF) and decree of 20 December 1900 of the President of the French Republic did not fix the boundaries of the third military territory – Arrêté of 1900 did not



Frontier Dispute (Benin/Niger)

459

locate the intercolonial boundary on the left bank of the River Niger – Letter of 27 August 1954 from Mr. Raynier, Governor ad interim of Niger – Context of that letter – Letter cannot be seen as authoritative confirmation of a previously established boundary – Benin’s contention that the said letter, in conjunction with the decree of 23 July 1900, constitutes a legal title substantiating its claims cannot be upheld. Arrêtés of 8 December 1934 and 27 October 1938 of the Governor-General of the AOF – Did not locate the intercolonial boundary in the river – Niger’s contention that said arrêtés constitute a legal title substantiating its claims cannot be upheld. No evidence of existence of a title determining the boundary in the colonial period – Legal relationship between title and effectivités. Consideration of effectivités relied on by the Parties – Effectivités prior to 1954 – Letter from administrateur adjoint Sadoux of 3 July 1914 and modus vivendi – Terms of modus vivendi generally respected until 1954 – Island of Lété administered by Niger – Islands opposite Gaya administered by Dahomey – Situation less clear between 1954 and critical date – Administration of island of Lété not transferred to or taken over by Dahomey during this period. Boundary between the Parties follows the main navigable channel of the River Niger as it existed at the dates of independence and passes to the left of the three islands opposite Gaya – Attribution of islands in the river according to this boundary. Precise location of boundary line in the main navigable channel – Line of deepest soundings as it existed at the dates of independence. Hydrographic and topographic surveys of the river over the course of time – Riverbed relatively stable – NEDECO report of 1970 the most useful source of information on the situation at the critical date – Boundary between the Parties follows the line of deepest soundings of the main navigable channel of the River Niger as it appears in that report and to be constituted opposite Gaya by the line of deepest soundings of the left navigable channel, except in the vicinity of the island of Kata Goungou, where it passes to the left of that island – Co-ordinates of the points through which the boundary passes. Determination of which of the islands in the river belong to Benin and which to Niger – Determination without prejudice to private law rights in respect of the islands. Course of the boundary on the bridges between Gaya and Malanville – Chamber’s jurisdiction to determine that boundary – Boundary on the bridges to follow the course of the boundary in the river. Course of the boundary in the River Mekrou sector. Consideration of the documents relied on by the Parties – Decree of 2 March 1907 effected a delimitation in this sector – Decree of 1 March 1919 creating the colony of Haute-Volta did not implicitly abrogate or amend the decree of

460

Frontier Dispute (Benin/Niger)

1907 – Arrêté of 31 August 1927 and erratum of 15 October 1927 defining the boundary between the colonies of Haute-Volta and Niger – Instruments concerning the creation of game reserves and national parks in the “Niger W” area. Cartographic materials. Line of 1907 no longer corresponded to the intercolonial boundary at the critical date – Decree of 1907 was never expressly abrogated or amended or superseded by another text – Power of the Governor-General of AOF to fix the boundaries of cercles and, hence, to determine those of colonies where the boundaries of a cercle are also those of a colony – Uti possidetis juris principle requires that account be taken of the manner in which titles were interpreted and applied by the competent public authorities of the colonial Power – River Mekrou regarded as intercolonial boundary at the critical date. Boundary between the Parties constituted by the median line of the River Mekrou. Text of the operative paragraph(s) (p. 150, para. 146) THE CHAMBER, (1) By four votes to one, Finds that the boundary between the Republic of Benin and the Republic of Niger in the River Niger sector takes the following course: – the line of deepest soundings of the main navigable channel of that river, from the intersection of the said line with the medial line of the River Mekrou until the point situation at co-ordinates 11 52' 29" latitude North and 3 25' 34" longitude East; – from that point, the line of deepest soundings of the left navigable channel until the point located at co-ordinates 1 51' 55" latitude North and 3 27' 41" longitude East, where the boundary deivates from this cahnnel and passes to the left of the island of Kata Goungou, subsequently rejoining the main navigable channel at the point located at co-ordinates 1 51'41" latitude North and 3 28'53" longitude East; – from this latter point, the line of deepest coundings of the main navigable channel of the river as far as the boundary of the Parties with Nigeria; and that the boundary line, proceeding downstream, passes through the points numbered from 1 to 154, the co-ordinates of which are indicated in paragraph 115 of the present Judgment; IN FAVOUR: Judge Ranjeva, Vice-President of the Chamber; Judges Kooijmans, Abraham; Judgead hoc Bedjaoui; AGAINST: Judge ad hoc de Bennouna

Frontier Dispute (Benin/Niger)



461

(2) By four votes to one, Finds that the islands situated in the River Niger therefore belong to the Republic of Benin or the Republic of Niger as indicated in paragraph 117 of the present Judgment; IN FAVOUR: Judge Ranjeva, Vice-President of the Chamber; Judges Kooijmans, Abraham; Judge ad hoc Bedjaoui AGAINST: Judge ad hoc de Bennouna (3) By four votes to one Finds that the boundary between the Republic of Benin and the Republic of Niger on the bridges between Gaya and Malanville follows the course of the boundary in the river; IN FAVOUR: Judge Ranjeva, Vice-President of the Chamber; Judges Kooijmans, Abraham; Judge ad hoc Bedjaoui; AGAINST: Judge ad hoc de Bennouna (4) Unanimously, Finds that the boundary between the Republic of Benin and the Republic of Niger in the River Mekrou sector follows the median line of that river, from the intersection of the said line with the line of deepest soundings of the main navigable channel of the River Niger as far as the boundary of the Parties with Burkina Faso. Declarations/Opinions Dissenting Opinion

Judge ad hoc de Bennouna

Sources of Law UN Charter

UN Charter, p. 95(2) Art. 102, p. 95–97(2)

ICJ Statute

Art. Art. Art. Art. Art. Art. Art. Art.

13(4), p. 98(11) 26(2), p. 97(4, 6) 31, 97(4) 31(6), p. 98(10) 38(1), p. 95–6(2) 40, p. 95–97(2) 40(3), p. 97(3) 60, p. 95–6(2)

ICJ Rules of Court

Art. Art. Art. Art.

8, p. 98(10) 17, p. 97(6) 17(2), p. 97(4) 18(2), p. 97(4), 98(11)

Frontier Dispute (Benin/Niger)

462 Sources of Law (cont.) Art. Art. Art. Art.

42, p. 97(3) 53(2), p. 98(13) 61(4), p. 98–99(14) 72, p. 98–99(14)

PCIJ case-law

Legal Status of Eastern Greenland, (Denmark v. Norway) case, [P.C.I.J. Series A/B No. 53, p 45–46.], p. 133(102)

ICJ case-law

Current case Order of 27 November 2002, p. 97(6), 98(7) Order of 11 September 2003, p. 98(8, 10) Order of 9 July 2004, p. 98(10) Order of 16 February 2005, p. 98(11) Other cases Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 565 (20)], p. 108(23) [I.C.J. Reports 1986, p. 568 (29)], p. 109(26) [I.C.J. Reports 1986, p. 568 (30)], p. 110(28) [I.C.J. Reports 1986, p. 568–69 (31)], p. 110(28) [I.C.J. Reports 1986, p. 582 (34)], p. 119(44), 128(81) [I.C.J. Reports 1986, p. 586–7(63)], p. 120(47), 127(77) Territorial Disputes (Libyan Arab Jamahiriya/Chad), [Judgment, I.C.J. Reports 1994, pp. 38 (75–76)], p. 127(77) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Provisional Measures, Judgment, [I.C.J. Reports 2002, p. 353(68)], p. 127(77) Case concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), Judgment of 17 December 2002: [I.C.J. Reports 2002, p. 678(126)], p. 127(77) Land, Island and Maritime Frontier Dispute (El Salvador / Honduras: Nicaragua intervening), Judgment, [I.C.J. Reports 1992, p. 399(62)], p. 109–110(27) Kasikili/Sedudu Island (Botswana/Namibia), [I.C.J. Reports 1999 (II), p. 1062 (24)], p. 149(144)

Treaties

2002 Special Agreement of 11 April 2002, p. 94(1), 95(2), 97(3, 4, 6), 98(8, 10), 99(15), 103(17), 104(18), 107(22), 108(23), 108–9(25), 120(45), 141(120), 142(125) 1994 Joint Agreement between Benin and Niger of 8 April 1994, p. 107(22)

Frontier Dispute (Benin/Niger)



463

Sources of Law (cont.) Charter of the Organisation of African Unity, p. 95(2), 1906 Franco-British Agreement of 29 May 1906, p. 99(15) 1906 Franco-British Agreement of 19 October 1906, p. 99(15) 2000 Constitutive Act of the African Union of 11 July 2000, p. 108(23) 1897 Convention between France and Germany of 23 July 1897, p. 112(33) 1898 Convention between France and Great Britain of 14 June 1898, p. 112(33), 114(37), 121(49) 1904 Convention between France and the Great Britain of 8 April 1904, p. 112(33) 1906 Convention between France and the Great Britain of 29 May 1906, p. 112(33) 1906 Agreement between France and the Great Britain of 19 October 1906, p. 112(33) 1999 Agreement between Niger and Benin of 14 January 1999, p. 116–7(39) Vienna Convention on the Law of Treaties, p. 142–3(126) Inter(national) legal French colonial law, droit d’ outré-mer, p. 110(28) references 1946 Constitution of 27 October 1946, p. 110(30) 1904 Decree of the French President of 18 October 1904, p. 110(30), 112(34), 120(47), 146(134) 1907 Decree of 2 March 1907, p. 112–3(34), 115(39), 117–8(40), 142–3(126), 145(129, 130, 132), 146(134), 148(140) 1909 Decree of 12 August 1909, p. 112–3(34), 115(39), 142–3(126) 1913 Decree of 23 April 1913, p. 11–2(34), 115–6(39), 142–3(126) 1911 Decree of 7 September 1911, p. 113(35) 1922 Decree of 13 October 1922, p. 113(35) 1919 Decree of 1 March establishing the colony of Haute-Volte, p. 113(35), 115–6(39), 145(131, 132), 146(134) 1926 Decree of 28 December 1926, p. 113(35), 146(135) 1899 Decree of 17 October 1899, p. 112(34), 121(48) 1901 arrêté of Governor of Dahomey of 20 March 1901, p. 112(34) 1927 arrêté général of the Governor-General ad interim of 31 August 1927, p. 113(35), 115–6(39), 117–8(40), 145(131), 146(135), 147(136), 147–8(138)

Frontier Dispute (Benin/Niger)

464 Sources of Law (cont.)

Erratum of 1927 arrêté général of 31 August 1927 dated 15 October 1927, p. 113(35), 115–6(39), 117–8(40), 147(136), 147–8(138) 1932 Decree of 5 September 1932, p. 113(35) Law No. 47–1707 of 4 September 1947, p. 113(35) 1898 arrêté of Governor ad interim of 11 August 1898, p. 113(36) 1934 arrêté of Governor-General of the AOF of 8 December 1934, p. 113(36), 114–5(37), 115–6(39), 126(68, 69, 70, 71, 72, 73), 127(74) 1938 arrêté of Governor-General of the AOF of 27 October 1938, p. 113(36), 115–6(39), 126(68, 69, 70, 71, 72, 73), 127(74) 1904 arrêté of Governor-General of the AOF of 27 October 1938, p. 113(36) 1907 arrêté of Governor-General of the AOF of 31 December 1907, p. 113(36) 1936 Decree of 13 October 1936, p. 115–6(39) 1908 arrêté of Governor-General of the AOF of 14 December 1908, p. 113(36) 1910 arrêté of Governor-General of the AOF of 22 June 1910, p. 113(36) 1912 arrêté of Governor-General of the AOF of 23 November 1912, p. 113(36), 122(55) 1927 arrêté of Governor-General of the AOF of 22 January 1927, p. 113(36) 1906 arrêté général of Governor-General of the AOF of 30 March 1956, p. 114(37) 1900 arrêté général of Governor-General of the AOF of 23 July 1900, p. 114(37), 121(49), 121(51, 52), 122(53, 54, 56, 57), 125(65) 1900 Decree of 20 December 1900 creating a Third Military Territory between the Niger and Lake Chad, p. 114(37), 121(50), 122(53, 54) Letter No. 163 from the Minister for the Colonies dated 7 September 1901 to the Governor-General of AOF, p. 114(37), 121(52), 122(54), 126(69, 72) Letter No. 54 of 3 July 1914 from administrateur adjoint Sadoux, commandant of the secteur of Gaya (Niger) to the commandant of the cercle of Moyen-Niger (Dahomey), p. 114(38), 128(83), 130–1(92), 132(98. 99, 101)

Frontier Dispute (Benin/Niger)



465

Sources of Law (cont.) Arrête général No. 2812/AP of 8 December 1934, p. 114–5(37), 121(52), 127(74) Arête général No. 3578/AP of 27 October 1938, p. 114–5(37), 121(52), 125(64) Arrête général No. 7640SE/F of 3 December 1952, p. 116–7(39), 147(137) Arête général No. 4676SE/F of 25 June 1953, p. 116–7(39), 147(137) Arête général of 16 April 1926, p. 115–6(39), 147(137) Letter No. 3722/APA of Governor ad interim Mr. Raynier 27 August 1954, p. 114–5(37), 122(57), 124(58, 59), 125(63, 66, 67), 130(89, 90, 91), 131(97), 132(101), 142–3(126) 1925 decree of 10 March 1925, p. 115–6(39) Arrêté No. 1302/AE/SZ of the Governor of Niger of 13 November 1937, p. 116–7(39) Note Verbale No. 03498 of the Ministry of Foreign Affairs of Niger to the Ministry of Foreign Affairs of Dahomey of 29 August 1973, p. 116–7(39), 142–3(126), 142–3(126), 149(142) Minutes of Meeting of Experts of Niger and Dahomey of 8 February 1974, p. 116–7(39), 142–3(126) Circular No. 114c of 3 November 1912 of Governor-General of the AOF, p. 120(47) 1954 Letter by Mr. Raynier, Secretary-General and Governor ad interim of Niger of 27 August 1954, p. 121(51), 124(61) 1954 Letter of commandant of the cercle of Kandi (Dahomey) of 17 June 1954, p. 124(61) 1954 Letter of chef of the subdivision of Niger to the Governor of Niger of 23 July 1954, p. 124(61) 1954 Letter of Governor of Dahomey of 1 July 1954, p. 124(62) 1954 letter of Governor of Dahomey of 11 December 1954, p. 125(66) 1917 Report, “Monographie de Gaya” of May 1917, p. 128–9(84) 1941 Telegram of the chef of the subdivision to the commandant of the cercle of Dosso (Niger), of 10 June 1941, p. 129(86) 1955 Letter of the chef of the subdivision to the commandant of the cercle of Dosso (Niger), of 20 June 1955, p. 130(90) 1956 Letter of the commandant of the cercle of Kandi of 28 June 1956, p. 130–1(92)

Frontier Dispute (Benin/Niger)

466 Sources of Law (cont.)

1960 Letter of the commandant of the cercle of Kandi to the Minister for the Interior of Dahomey of 3 July 1960, p. 131(96) 1959 Letter of the chef of the subdivision to the Prime Minister of Dahomey of 16 June 1959, p. 131(94) 1960 Letter of the President of the Council of Ministers of Niger to the Prime Minister of Dahomey of 13 July 1960, p. 131(97) 1960 Letter of the Prime Minister of Dahomey to the President of the Council of Ministers of Niger of 29 July 1960, p. 131(97) 1960 Letter of the Prime Minister of Niger of 31 July 1960, p. 131(97) 1960 Report of the gendarmerie of Malanville of 1 July 1960, p. 132(100) 1926–1932 Reporst of the Mission of Engineer A.M.J. Beneyton on behalf of the AOF, p. 134(107) 1967–70 Final Report of a study on the Navigability of the Middle Niger of NEDECO, p. 134(107, 111), 135(112, 113, 114), 139–40(116) 1937 arrêté of Governor-General of 30 September 1937, p. 147(137) 1937 arrêté of Governor-General of 13 November 1937, p. 147(137)

Representation of Parties Republic of Benin Agent

H.E. Mr. Rogatien Biaou, Minister for Foreign Affairs and African Integration,

Co-agent

H.E. Mr. Dorothé C. Sossa, Keeper of the Seals, Minister of Justice, Legislation and Human Rights,

Deputy Agent

H.E. Mr. Euloge Hinvi, Ambassador of the Republic of Benin to the Benelux countries,

Counsel & Advocate Maître Robert Dossou, Avocat at the Benin bar, former Bâtonnier, Honorary Dean of the Law Faculty, University of Abomey-Calavi, Mr. Alain Pellet, Professor of Law, University of Paris X-Nanterre, member and former Chairman of the International Law Commission,



Frontier Dispute (Benin/Niger)

467

Republic of Benin (cont.) Mr. Jean-Marc Thouvenin, Professor of Law, University of Paris X-Nanterre, Avocat at the Paris Bar, partner in the Lysias law firm, Mr. Mathias Forteau, Professor of Law at the University of Lille 2 and at the Lille Institute of Political Studies Special Advisor

Mr. Francis Lokossa, Director of Legal Affairs and Human Rights, Ministry of Foreign Affairs and African Integration,

Advisors

Mr. François Noudegbessi, Permanent Secretary, National Commission for the Delimitation of Boundaries, Mr. Jean-Baptiste Monkotan, Legal Adviser to the President of the Republic of Benin, Mr. Honoré D. Koukoui, Secretary General, Ministry of Justice, Legislation and Human Rights, Mr. Jacques Migan, Avocat at the Cotonou Bar, Legal Adviser to the President of the Republic of Benin, Ms. Héloïse Bajer-Pellet, Avocat at the Paris Bar, Lysias law firm, Mr. Luke Vidal, lawyer, Lysias law firm, Mr. Daniel Müller, lawyer, Researcher at the Centre de droit international de Nanterre (CEDIN), Ms. Christine Terriat, lawyer, Maître Robert M. Dossou law firm, Mr. Maxime Jean-Claude Hounyovi, Economist, Maître Robert M. Dossou law firm, Mr. Edouard Roko, First Secretary, Embassy of the Republic of Benin to the Benelux countries,

Counsel & Experts

Mr. Pascal Lokovi, Cartographer, Mr. Clément C. Vodouhe, Historian,

Secretary

Ms. Collette Tossouko, Secretarial Assistant, Embassy of the Republic of Benin to the Benelux countries

Republic of Niger Agent

H.E. Ms. Aïchatou Mindaoudou, Minister for Foreign Affairs, Co-operation and African Integration,

Co-agent

H.E. Mr. Maty El Hadji Moussa, Minister of Justice, Keeper of the Seals,

468

Frontier Dispute (Benin/Niger)

Republic of Niger (cont.) Deputy Agent, Legal Adviser and Co-ordinator

H.E. Mr. Souley Hassane, Minister of National Defence, H.E. Mr. Mounkaïla Mody, Minister of the Interior and Decentralization, Mr. Boukar Ary Maï Tanimoune, Director of Legal Affairs and Litigation, Ministry of Foreign Affairs, Co-operation and African Integration,

Lead Counsel

Mr. Jean Salmon, Professor Emeritus, Université libre de Bruxelles,

Counsel

Mr. Maurice Kamto, Professor, University of Yaoundé II, Mr. Gérard Niyungeko, Professor and former Vice-Recteur, University of Burundi, former President of the Constitutional Court of Burundi, Mr. Amadou Tankoano, Professor, Abdou Moumouni University, Niamey, Mr. Pierre Klein, Professor, Université libre de Bruxelles

Experts

Mr. Sadé Elhadji Mahamane, Chief Curator of Libraries and Archives, member of the National Boundaries Commission, Mr. Amadou Maouli Laminou, Magistrat, Head of Section at the Ministry of Justice, H.E. Mr. Abdou Abarry, Ambassador of the Republic of Niger to the Kingdom of the Netherlands, Mr. Abdelkader Dodo, Hydro-geologist, Lecturer at the Faculty of Sciences, Abdou Moumouni University, Niamey, Mr. Belko Garba, Chief Surveyor, member of the National Boundaries Commission, Mr. M. Hamadou Mounkaïla, Chief Surveyor, Head of Department, Permanent Secretariat of the National Boundaries Commission, Mr. Idrissa Y Maïga, Chief Curator of Libraries and Archives, Director of National Archives, member of the National Boundaries Commission, Mr. Mahaman Laminou, Director-General of the National Geographical Institute of Niger, member of the National Boundaries Commission, Mr. Mahamane Koraou, Permanent Secretary to the National Boundaries Commission, Mr. Soumaye Poutia, Magistrat, Technical Adviser to the Office of the Prime Minister,



Frontier Dispute (Benin/Niger)

469

Republic of Niger (cont.) Colonel Yayé Garba, Secretary General of the Ministry for National Defence, Research Assistants

Mr. Moutari Laouali, Governor of the Region of Dosso, Mr. Emmanuel Klimis, Research Assistant at the Centre for International Law, Université libre de Bruxelles, Mr. Boureima Diambeïdou, Chief Surveyor, Mr. Bachir Hamissou, Administrative Assistant, Mr. Ouba Adamou, Chief Surveyor, National Geographic Institute of Niger, Mr. Salissou Mahamane, Accountant,

Administrative and Technical Staff

Mr. Adboulsalam Nouri, Principal Secretary, Ms. Haoua Ibrahim, Secretary, Mr. Amadou Gagéré, Administrative Officer, Mr. Amadou Tahirou, Administrative Officer, Mr. Mamane Chamsou Maïgari, journalist, Director of Voix du Sahel, Mr. Goussama Saley Madougou, cameraman for national television, Mr. Ali Moussa, journalist with the Niger Press Agency, Mr. Issoufou Guéro, journalist

CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) General List No.: 126 Mean(s) and date of institution of the case: Application (28 May 2002) Statement of claim/question: “Accordingly, while reserving the right to supplement and amplify this claim in the course of the proceedings, the Democratic Republic of the Congo requests the Court to: Adjudge and declare that: (a) Rwanda has violated and is violating the United Nations Charter (Article 2, paragraphs 3 and 4) by violating the human rights which are the goal pursued by the United Nations through the maintenanceof international peace and security, as well as Articles 3 and 4 of the Charter of the Organization of African Unity; (b) Rwanda has violated the International Bill of Human Rights, as well as the main instruments protecting human rights, including, inter alia, the Convention on the Elimination of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Constitution of the WHO, the Constitution of Unesco; (c) by shooting down a Boeing 727 owned by Congo Airlines on 10 October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda also violated the United Nations Charter, the Convention on International Civil Aviation of 7 December 1944 signed at Chicago, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970 and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971;

Armed Activities On The Territory Of The Congo (New Application: 2002) 471 (Democratic Republic of the Congo v. Rwanda) (d) by killing, massacring, raping, throat-cutting, and crucifying, Rwanda is guilty of genocide against more than 3,500,000 Congolese, including the victims of the recent massacres in the city of Kisangani, and has violated the sacred right to life provided for in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide and other relevant international legal instruments. In consequence, and in accordance with the international legal obligations referred to above, to adjudge and declare that: (1) all Rwandan armed forces responsible for the aggression shall forthwith quit the territory of the Democratic Republic of the Congo, so as to enable the Congolese people to enjoy in full their rights to peace, to security, to their resources and to development; (2) Rwanda is under an obligation to procure the immediate, unconditional withdrawal of its armed and other forces from Congolese territory; (3) the Democratic Republic of the Congo is entitled to compensation from Rwanda for all acts of looting, destruction, massacre, removal of property and persons and other acts of wrongdoing imputable to Rwanda, in respect of which the Democratic Republic of the Congo reserves the right to establish a precise assessment of injury at a later date, in addition to restitution of the property taken. It also reserves the right in the course of the proceedings to claim other injury suffered by it and its people.” On behalf of the Government of the Democratic Republic of the Congo, in the Counter-Memorial: “For these reasons, may it please the Court, To find that the objections to jurisdiction raised by Rwanda are unfounded; To find that the objections to admissibility raised by Rwanda are unfounded; And, consequently, to find that the Court has jurisdiction to entertain the case on the merits and that the Application of the Democratic Republic of the Congo is admissible as submitted; To decide to proceed with the case.” On behalf of the Congolese Government,

472 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) at the hearing of 8 July 2005: “May it please the Court, 1. to find that the objections to jurisdiction and admissibility raised by Rwanda are unfounded; 2. consequently, to find that the Court has jurisdiction to entertain the case on the merits and that the Application of the Democratic Republic of the Congo is admissible as submitted; 3. to decide to proceed with the case on the merits.” Basis of jurisdiction: Art. 36(1) ICJ Statute, Convention on Racial Discrimination, Convention on Discrimination against Women, Genocide Convention, WHO Constitution, UNESCO Constitution, Convention on Privileges and Immunities, Convention against Torture, Montreal Convention Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

28 May 2002 to 3 February 2006

Public sittings 13 to 14 June 2002 4 to 8 July 2005

Orders Date of Order and Authority

Content

10 July 2002 Court – President Guillaume

Please refer Section B

18 September 2002

Fixing of time-limits: 20 January 2003 – Memorial of Rwanda 20 May 2003 – Counter-Memorial of Democratic Republic of Congo

Section B – Provisional Measures Official citation: Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 219

Armed Activities On The Territory Of The Congo (New Application: 2002) 473 (Democratic Republic of the Congo v. Rwanda) Date of Judgment: 10 July 2002 Authoritative text: French Composition of the Court: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereschetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Dugard, Mavungu; Registrar Couvreur. Text of the operative paragraph(s) (p. 53, paragraph 128) THE COURT, (1) By fifteen votes to two, Rejects the request for the indication of provisional measures submitted by the Democratic Republic of the Congo on 28 May 2002; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc Dugard AGAINST: Judge Elaraby; Judge ad hoc Mavungu (2) By fifteen votes to one, Rejects the submission by the Rwandese Republic seeking the removal of the case from the Court’s List. IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mavungu AGAINST: Judge ad hoc Dugard Declarations/Opinions Declarations

Judges Koroma, Higgins, Buergenthal and Elaraby

Separate Opinions

Judge ad hoc Dugard and Mavungu

Sources of Law UN Charter

Art. Art. Art. Art.

2(3), p. 221(6) 2(4), p. 221(6) 51, p. 225(13), 233(33), 240(53) 55(c), p. 231(31)

474 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Sources of Law (cont.) ICJ Statute

Art. Art. Art. Art. Art. Art.

31(3), p. 227(17) 41, p. 228(19), 233(33) 36(1), p. 241(59) 36(2), p. 220(2), 228(20), 241(59) 36(1), p. 220(2) 40(3), p. 227(16)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art.

38(4), p. 227(14) 42, p. 227(15) 73, p. 233(33), 240(53) 73(2), p. 227(14) 74, p. 233(33), 240(53) 74(3), p. 227(14) 75, p. 233(33), 240(53)

PCIJ case-law

Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 2, 1928, [P.C.I.J., Series A, No. 15, p. 23], p. 18(21) Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 16], p. 39(88), 40(90) Interpretation of the Statute of Memel Territory, Preliminary Objection, 1923, [P.C.I.J. Series A/B No. 47, p. 243], p. 39(88) Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, [P.C.I.J. Series A/B No. 79, p. 199], p. 39(88) Legal Status of Eastern Greenland, [P.C.I.J. Series A/B No. 53, p. 45–46.], p. 27(46)

ICJ case-law

Current Order of 10 July 2002, p. 17(16, 17, 18), 19(22, 23, 24), 30(61), 32(65), 33(72), 37(84), 44(103) Previous Legality of Use of Force (Yugoslavia v. Spain), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 773–774(40)], p. 235(39) Reservations to the Convention on Genocide, [I.C.J. Reports 1951, p. 15], p. 229(22), 235(40), 245(71) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. USA), Preliminary Objections, Judgment, [I.C.J. Reports 1998, p. 121–122(15–19)], p. 3237(44) Legality of the Use by a State of Nuclear Weapons in Armed Conflict, [I.C.J. Reports 1996(I), p. 75(19)], p. 238(48)

Armed Activities On The Territory Of The Congo (New Application: 2002) 475 (Democratic Republic of the Congo v. Rwanda) Sources of Law (cont.) Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures [I.C.J. Reports 1999(I), p. 132(20)], p. 241(57) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 19(53)], p. 241(58), 245(71) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 102(29)], p. 245(71) Treaties

1949 Geneva Convention, p. 230(26), 241(56), 250(93) 1977 Additional Protocol I to the Geneva Conventions, p. 241(56), 244(68), 245(69) 1965 Convention on Racial Discrimination of 21 December 1965, p. 220(2), 221(6), 225(13), 229(24, 25), 231(30), 232(33), 235(41), 243(63, 64), 244(65, 67) 1979 Convention on Discrimination against Women of 18 December 1979, p. 220(2), 221(6), 225(13), 229(23), 232(33), 236(43, 44), 238(48), 243(63), 246(76), 247(77, 78, 79) 1948 Genocide Convention of 9 December 1948, p. 220(2), 221(6), 225(13), 228(21, 22), 232(33), 235(39, 40) 243(63), 245(72) 1946 WHO Constitution of 22 July 1946, p. 220(2), 221(6), 225(13), 230(27), 232(33), 237(46), 238(48), 243(63), 247(80), 248(81, 82) 1945 UNESCO Constitution of 16 November 1945, p. 220(2), 221(6), 225(13), 232(33), 235(42), 243(63), 248(83, 84, 85) 1947 Privileges and Immunities Convention of 21 November 1947, p. 220(2), 221(6), 221(6), 225(13), 230(29), 237(47), 240(53), 242(62) 1984 Convention against Torture of 10 December 1984, p. 220(2), 221(6), 225(13), 239(26), 231(30), 232(33), 242(60, 61) 1971 Montreal Convention of 23 September 1971, p. 220(2), 221(6), 225(13), 230(28), 231(30), 237(45), 238(48), 243(63), 249(86, 87, 88) 1969 Vienna Convention on Law of Treaties of 23 May 1969, p. 220(3), 225(13), 229(22), 234(36, 37), 243(63), 246(73, 74, 75) OAU Charter, p. 221(6), 1944 Chicago Convention of 7 December 1944, p. 225(13) 1970 Hague Convention of 16 December 1970, p. 225(13)

476 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Sources of Law (cont.) 1966 International Covenant on Civil and Political Rights, p. 225(13) 1998 ICC Statute, p. 229(22), 246(72) African Charter on Human and Peoples’ Rights, p. 38(86) UN Resolutions

Universal Declaration of Human Rights, p. 225(13) GA resolution 1803(XVII) of 14 December 1962, p. 225(13) SC Resolution 1304 of 16 June 2000, p. 224(11) SC Resolutions 1234 (1 999), 1291 (2000), 1304 (2000), 1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002) and 1417 (2002), p. 250(93) UN Commission on Human Rights resolution 2000/14 of 19 April 2002, p. 224(12), 229(23)

Section C – Jurisdiction and Admissibility Official citation: Armed Activities on the Territory of the Congo (New Application: 2002), Democratic Republic of the Congo v. Rwanda, Jurisdiction and Admissibility: I.C.J. Reports 2006, p. 6 Date of Judgment: 3 February 2006 Authoritative text: French Composition of the Court: President Shi; Vice-President Ranjeva; Judges Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judges ad hoc Dugard, Mavungu; Registrar Couvreur. Headnotes: Present proceedings confined to the questions of the jurisdiction of the Courtand the admissibility of the DRC’s Application. Jurisdiction of the Court – Applicant invoking 11 bases of jurisdiction. (1) Article 30 of the Convention against Torture of 10 December 1984. Rwanda not party to that Convention – DRC cannot invoke that instrument as a basis of jurisdiction. (2) Article 9 of the Convention on the Privileges and Immunities of the Specialized Agencies of 21 November 1947. Convention not invoked by the DRC in the

Armed Activities On The Territory Of The Congo (New Application: 2002) 477 (Democratic Republic of the Congo v. Rwanda) final version of its argument – Convention not taken into consideration by the Court in its Judgment. (3) Forum prorogatum. DRC’s contention that Rwanda’s agreement to plead amounts to acceptance of the Court’s jurisdiction – Express and repeated objection by Rwanda to the Court’s jurisdiction at every stage of the proceedings – Whether there has been an unequivocal indication of voluntary and indisputable acceptance of the Court’s jurisdiction – Rwanda’s attitude cannot be interpreted as consent to theCourt’s jurisdiction over the merits of the dispute. (4) Order of 10 July 2002 on the indication of provisional measures. Absence of manifest lack of Court’s jurisdiction interpreted by the DRC as acknowledgment by the Court of its jurisdiction – Non-removal of DRC’s Application from the Court’s List – Object of present phase of proceedings is precisely the Court’s further examination of the issue of its jurisdiction – Absence of manifest lack of jurisdiction not amounting to acknowledgment by the Court of its jurisdiction. (5) Article IX of the Genocide Convention of 9 December 1948 – Reservation by Rwanda. Whether Rwanda withdrew its reservation through the adoption of décretloi No. 014/01 of 15 February 1995 – Question of the validity and effect of the décretloi in Rwanda’s domestic legal order different from that of its effect in the international legal order – Withdrawal by a contracting State of a reservation to a multilateral treaty having effect in relation to other contracting States only when they have received notice thereof – No agreement whereby withdrawal of the reservation could have become operative without notice – No notice by Rwanda of such withdrawal received at international level – Adoption and publication of the décret-loi not entailing, as a matter of international law, Rwanda’s withdrawal of its reservation. DRC’s contention that withdrawal of the reservation was corroborated by a statement of 17 March 2005 by Rwanda’s Minister of Justice before the United Nations Commission on Human Rights – Claim that this statement constituted a unilateral undertaking having legal effects in regard to withdrawal of the reservation – Capacity of a Minister of Justice to bind the State internationally by statements in respect of matters falling within the Minister’s purview cannot be ruled out merely because of the nature of the functions ­exercised – Examination of the legal effect of the Minister’s statement in light of its content and of the circumstances in which it was made – Content of the statement not sufficiently precise – Statement cannot be considered as confirmation by Rwanda of a previous decision to withdraw its reservation or as a unilateral commitment having legal effects in regard to such withdrawal – ­Statement

478 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) ­ aving nature of a declaration of intent, very general in scope – Whether stateh ment could have effect on the Court’s jurisdiction, given that it was made almost three years after the institution of proceedings – Procedural defect which the Applicant could easily remedy: should not be penalized by the Court. DRC’s contention that Rwanda’s reservation was invalid because it sought to prevent the Court from safeguarding peremptory norms – Erga omnes nature of the rights and obligations enshrined in the Genocide Convention – Characterization of the prohibition of genocide as a peremptory norm of general International law ( jus cogens) – The fact that a norm having such character may be at issue in a dispute cannot in itself provide a basis for the Court’s jurisdiction to entertain that dispute – Court’s jurisdiction always based on consent of the parties. DRC’s contention that Rwanda’s reservation was invalid because incompatible with the object and purpose of the Genocide Convention – Effect of the fact that Article 120 of the Statute of the International Criminal Court permits no reservations to that Statute – Reservations not prohibited by the Genocide Convention – This legal situation not altered by Article 120 of the Statute of the International Criminal Court – Rwanda’s reservation bearing not on substantive obligations under the Genocide Convention but on the Court’s jurisdiction – Reservation not incompatible with the object and purpose of the Genocide ­Convention. DRC’s contention that the reservation conflicts with a peremptory norm of general international law – No such norm requiring a State to consent to the Court’s jurisdiction in order to settle a dispute relating to the Genocide Convention – Article IX of the Genocide Convention cannot constitute a basis for the Court’s jurisdiction. (6) Article 22 of the Convention on Racial Discrimination of 21 December 1965 – Reservation by Rwanda, Whether Rwanda’s reservation withdrawn through the adoption of décret-loi. No. 014/01 of 15 February 1995 – DRC’s contention that withdrawal of the reservation was corroborated by a statement of 17 March 2005 by Rwanda’s Minister of Justice before the United Nations Commission on Human Rights – Claim that this statement constituted a unilateral undertaking having legal effects in regard to withdrawal of the reservation – Applicability mutatis mutandis to this issue of the Court’s reasoning and findings regarding the DRC’s claim that Rwanda had withdrawn its reservation to the Genocide Convention – Procedures for withdrawal of a reservation to the Convention on Racial Discrimination expressly provided for in Article 20, paragraph 3, thereof – No notification to United Nations Secretary-General by Rwanda of the withdrawal of its reservation – Rwanda having maintained its reservation. DRC’s contention that Rwanda’s reservation was invalid because incompatible with the object and purpose of the Convention – Under Article 20, paragraph 2, of the Convention, reservations are to be considered incompatible with the

Armed Activities On The Territory Of The Congo (New Application: 2002) 479 (Democratic Republic of the Congo v. Rwanda) Convention’s object and purpose if at least two-thirds of States parties object – Condition of Article 20, paragraph 2, not satisfied in respect of Rwanda’s reservation to Article 22 – Applicability mutatis mutandis of the Court’s reasoning and conclusions in respect of the DRC’s contention that Rwanda’s reservation to the Genocide Convention was invalid – Reservation to the Convention on Racial Discrimination not incompatible with the object and purpose of that Convention. DRC’s contention that the reservation conflicts with a peremptory norm of general international law – Court’s reference to its reasons for dismissing the DRC’s argument in respect of Rwanda’s reservation to Article IX of the Genocide Convention – Article 22 of the Convention on Racial Discrimination cannot constitute a basis for the Court’s jurisdiction. (7) Article 29, paragraph 1, of the Convention on Discrimination against Women of 18 December 1979. DRC’s contention that an objection based on non-compliance with the pre­conditions provided for in Article 29 is an objection to admissibility of the Application – Examination of the conditions determining the extent of acceptance of the Court’s jurisdiction relates to the issue of its jurisdiction and not to the admissibility of the Application – Conclusion applicable mutatis mutandis to all the other compromissory clauses invoked by DRC – Conditions of Article 29 cumulative – Whether preconditions for seisin of the Court satisfied – DRC not having shown that its attempts to negotiate with Rwanda related to settlement of a dispute concerning the interpretation or application of the Convention – DRC having further not shown that it made a proposal to Rwanda for the organization of arbitration proceedings to which the latter failed To respond – Article 29, paragraph 1, of the Convention on Discrimination against Women cannot serve to found the Court’s jurisdiction. (8) Article 75 of the WHO Constitution of 22 July 1946. Whether preconditions for seisin of Court satisfied – DRC not having demonstrated the existence of a question or dispute concerning the interpretation or application of the WHO Constitution – DRC having further not proved that it sought to settle the question or dispute by negotiation or that the World Health Assembly could not have settled it – Article 75 of the WHO Constitution cannot serve to found the Court’s jurisdiction. (9) Article XIV, paragraph 2, of the Unesco Constitution of 16 November 1945. Whether preconditions for seisin of Court satisfied – DRC’s claim not involving a question or dispute concerning interpretation of the Constitution – DRC having further not shown that it followed the prior procedure for seisin of the Court pursuant to Article XIV of the Unesco Constitution and Article 38 of the

480 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Rules of Procedure of the Unesco General Conference – Article XIV, paragraph 2, of the Unesco Constitution cannot serve to found the Court’s jurisdiction. (10) Article 14, paragraph 1, of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971. Whether preconditions for seisin of Court satisfied – Dispute concerning the interpretation or application of the Convention which could not have been settled by negotiation: DRC not having indicated the specific provisions of the Convention which could apply to its claims on the merits – DRC having further not shown that it made a proposal to Rwanda for the organization of arbitration proceedings to which the latter failed to respond – Article 14, paragraph 1, of the Montreal Convention cannot serve to found the Court’s jurisdiction. (11) Article 66 of the Vienna Convention on the Law of Treaties of 23 May 1969. Non-retroactivity of the Vienna Convention (Article 4) – Genocide Convention and Convention on Racial Discrimination concluded before the entry into force between the Parties of the Vienna Convention – Rules in Article 66 of the Vienna Convention not declaratory of customary international law – No Agreement between the Parties to apply Article 66 between themselves – Article 66 of the Vienna Convention on the Law of Treaties cannot serve to found the Court’s jurisdiction. Admissibility of the DRC’s Application. No jurisdiction to entertain the Application – Court not required to rule on its admissibility. Distinction between acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law – States remaining responsible for acts attributable to them which are contrary to international law. Text of the operative paragraph(s) (p. 53, paragraph 128) THE COURT, By fifteen votes to two, Finds that it has no jurisdiction to entertain the Application filed by the Democratic Republic of the Congo on 28 May 2002. IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Dugard AGAINST: Judge Koroma; Judge ad hoc Mavungu

Armed Activities On The Territory Of The Congo (New Application: 2002) 481 (Democratic Republic of the Congo v. Rwanda) Declarations/Opinions Dissenting Opinion

Judge Koroma

Joint Separate Opinion

Judges Higgins, Kooijmans, Elaraby, Owada and Simma

Declaration

Judge Kooijmans

Separate Opinion

Judge Alkhasawneh

Declaration

Judge Elaraby

Separate Opinion

Judge ad hoc Dugard

Dissenting Opinion

Judge ad hoc Mavungu

Sources of Law UN Charter

Art. 2(3), p. 14(11) Art. 2(4), p. 14(1) Art. 2(2), p. 42(97)

ICJ Statute

Art. Art. Art. Art. Art. Art.

31, p. 12(4) 34(3), p. 13(7) 36(1), p. 12(1) 38, p. 44(104) 40(3), p. 12(3) 41, p. 12(2)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art. Art.

38(4), p. 12(3) 43, p. 13(7) 53(2), p. 13(8) 69(3), p. 13(7) 73, p. 12(2) 74, p. 12(2) 73(2), p. 12(3) 79(2), p. 13(6) 79(3), p. 13(6)

PCIJ case-law

Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 2, 1928, [P.C.I.J., Series A, No. 15, p. 23], p. 18(21) Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 16], p. 39(88), 40(90) Interpretation of the Statute of Memel Territory, Preliminary Objection, 1923, [P.C.I.J. Series A/B No. 47, p. 243], p. 39(88) Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, [P.C.I.J. Series A/B No. 79, p. 199], p. 39(88) Legal Status of Eastern Greenland, [P.C.I.J. Series A/B No. 53, p. 45–46.], p. 27(46)

482 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Sources of Law (cont.) ICJ case-law

Current Order of 10 July 2002, p. 17(16, 17, 18), 19(22, 23, 24), 30(61), 32(65), 33(72), 37(84), 44(103) Previous Corfu Channel, [I.C.J. Reports 1949, p. 248], p. 18(21), Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 23], p. 19(22), 27(46), 29(54), 31(64) Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, [I.C.J. Reports 1952, p. 113–114], p. 19(22), 20(25), Legality of Use of Force (Yugoslavia v. Spain), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 773–774(40)], p. 20(25), 32(68) Legality of Use of Force (Yugoslavia v. USA), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 925–926(34)], p. 20(25), 32(68) Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), [I.C.J. Reports 1973, p. 18], p. 20(25) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p. 14], p. 20(25) Arbitral Award of 31 July 1989, (Guniea Bissau v. Senegal) [I.C.J. Reports 1991, p. 72(56)], p. 20(25) Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999, [I.C.J. Reports 1999(II), p. 925–926(34)], p. 20(25), 31(61), Nuclear Tests (Australia v. France; New Zealand v. France), [I.C.J. Reports 1974], p. 254(15), p. 461(15)], p. 27(46), 28(49, 50) Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. ()], p. 27(46), 29(50) Legal Status of Eastern Greenland, [P.C.I.J. Series A/B No. 53, p. 45–46.], p. 27(46) Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, [I.C.J. Reports 1986, p. 582 (54)], p. 28(49) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 90], p. 30(60), 32(64), 40(90), 51(123), Reservations to the Convention on Genocide, [I.C.J. Reports 1951, p. 15], p. 31(64), 32(66), 50(122)

Armed Activities On The Territory Of The Congo (New Application: 2002) 483 (Democratic Republic of the Congo v. Rwanda) Sources of Law (cont.) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, [I.C.J. Reports 1992, p. 3], p. 36(81), 39(88), 40(90), 41(92) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. USA), Preliminary Objections, Judgment, [I.C.J. Reports 1998, p. 121–122(15–19)], p. 39(88), 40(90), 41(92) South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), I.C.J. Reports 1962, p. 328], p. 38(86), 39(88), 40(90), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p.14], p. 39(88), 50(122) Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Order of 19 August 1988, [I.C.J. Reports 1987, p. 88–90(42–48)], p. 39(88) Interpretation of Peace Treaties, Advisory Opinion, [I.C.J. Reports 1950, p. 74], p. 40(90) Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, [I.C.J. Reports 2005, p. 18(24)], p. 40(90) Treaties

1965 Convention on Racial Discrimination of 21 December 1965, p. 12(1), 13(7), 14(11), 16(15), 21(27), 33(71, 72), 34(73, 74, 75), 35(77, 78, 79), 51(124), 52(125) 1979 Convention on Discrimination against Women of 18 December 1979, p. 12(1), 13(7), 14(11), 16(15), 35(80), 36(81, 82), 37(83, 85), 38(86, 87), 39(88), 40(89, 91), 41(92, 93) 1948 Genocide Convention of 9 December 1948, p. 12(1), 14(11), 16(15), 21(27, 28), 22(29, 30, 31), 23(33, 34), 24(36, 38), 25(39), 26(43, 44, 45), 28(50), 29(52, 54, 56), 30(57, 58, 59, 60, 61), 31(62, 63, 54), 32(66, 67, 68), 33(69, 70), 34(73, 75), 35(77, 78), 50(121), 51(124), 52(125), 1946 WHO Constitution of 22 July 1946, p. 12(1), 13(7), 14(11), 16(15), 21(27), 41(94, 95), 42(96, 97), 43(98, 99, 100, 101) 1945 UNESCO Constitution of 16 November 1945, p. 12(1), 13(7), 14(11), 16(15), 21(27), 43(102), 44(103, 104, 105), 45(106, 107, 108), 45(109) 1947 Privileges and Immunities Convention of 21 November 1947, p. 12(1), 17(17), 21(26)

484 Armed Activities On The Territory Of The Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Sources of Law (cont.) 1984 Convention against Torture of 10 December 1984, p. 12(1), 14(11), 16(15), 17(16), 21(26) 1971 Montreal Convention of 23 September 1971, p. 12(1), 13(7), 14(11), 16(15), 21(27), 46(110, 111, 112), 47(113), 48(114, 115, 116), 49(117, 118, 119) 1969 Vienna Convention on Law of Treaties of 23 May 1969, p. 12(1), 13(7), 1 6(15), 21(27), 25(41), 27(46), 30(57), 34(73), 49(120), 50(121), 51(123), 124, 125), 52(125) OAU Charter, p. 14(11), 1944 Chicago Convention of 7 December 1944, p. 14(11) 1970 Hague Convention of 16 December 1970, p. 14(11) International Covenant on Civil and Political Rights, p. 15(11) ICC Statute, p. 30(58), 31(62), 32(66) African Charter on Human and Peoples’ Rights, p. 38(86) UN Resolutions

Universal Declaration of Human Rights, p. 15(11) SC Resolution 1304 of 16 June 2000, p. 38(86) SC Resolution 1417 of 14 June 2002, p. 38(86)

Inter(national) legal Protocol of Agreement on Miscellaneous Issues and Final references Provisions between the Government of Rwanda and the Rwandan Patriotic Front of 3 August 1993, p. 22(30, 31), 23(34) Décret-loi No. 014/01 of 15 February 1995 of Rwanda, 22(30, 31), 23(32), 24(35), 25(39, 40, 41), 26(42, 44) Fundamental Law of the Rwandese Republic of 1995, p. 22(31) ICAO Declaration of 10 March 1999, p. 47(112)

Representation of Parties Democratic Republic of the Congo Agent

H.E. Maître Honorius Kisimba Ngoy Ndalewe, Minister of Justice and Keeper of the Seals of the Democratic Republic of the Congo, as Head of Delegation, H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and Plenipotentiary of the Democratic Republic of the Congo to the Kingdom of the Netherlands,

Co-agent & Counsel Mr. Ntumba Luaba Lumu, Secretary-General to the Government, Professorof Law at the University of Kinshasa,

Armed Activities On The Territory Of The Congo (New Application: 2002) 485 (Democratic Republic of the Congo v. Rwanda) Democratic Republic of the Congo (cont.) Counsel and advocates

Mr. Lwamba Katansi, Professor at the Law Faculty of the University of Kinshasa, avocat of the Kinshasa/Gombe Court of Appeal, Mr. Mukadi Bonyi, Professor at the Law Faculty of the University of Kinshasa, avocat of the Supreme Court of Justice, Mr. Akele Adau, Professor and Honorary Dean of the Law Faculty of theUniversity of Kinshasa, President of the Military High Court,

Adviser

Maître Crispin Mutumbe Mbuya, Legal Adviser to the Minister of Justiceand Keeper of the Seals, Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice and Keeper of the Seals, Mr. Nsingi-zi-Mayemba, First Counsellor, Embassy of the Democratic Republic of the Congo in the Netherlands, Ms. Marceline Masele, Second Counsellor, Embassy of the Democratic Republic of the Congo in the Netherlands,

Assistant to Counsel Mr. Richard Lukunda, and Advocates

Rwanda Agent

Mr. Martin Ngoga, Deputy Prosecutor General of the Republic of Rwanda,

Deputy Agent

H.E. Mr. Joseph Bonesha, Ambassador of the Republic of Rwanda to the Kingdom of Belgium,

Counsel

Mr. Christopher Greenwood, C.M.G., Q.C., Professor of International Lawat the London School of Economics and Political Science, member of the English Bar, Ms. Jessica Wells, member of the English Bar,

Secretary

Ms. Susan Greenwood,

APPLICATION FOR REVISION OF THE JUDGMENT OF 11 SEPTEMBER IN THE CASE CONCERNING THE LAND, ISLAND AND MARITIME FRONTIER DISPUTE (El Salvador v. Honduras) General List No.: 127 Mean(s) and date of institution of the case: Application (10 September 2002) Statement of claim/question: “The Republic of El Salvador respectfully requests the Chamber, rejecting all contrary claims and submissions to adjudge and declare that: 1. The application of the Republic of El Salvador is admissible based on the existence of new facts of such a nature as to leave the case open to revision, pursuant to Article 61 of the Statute of the Court, and 2. Once the request is admitted that it proceed to a revision of the Judgement of 11 September 1992, so that a new judgment fixes the boundary line in the sixth disputed sector of the land boundary between EL Salvador and Honduras as follows: ‘starting at the old mouth of the Goascorán River at the entry point known as the Estero de la Cutú, located at latitude 13 degrees, 22 minutes, 00 seconds north and longitude 87 degrees 41 minutes 25 seconds west, the border follows the old bed of the Goascorán River for a distance of 17,300 meters up to the place known as Rompición de Los Amates, located at latitude 13 degrees 26 minutes 29 seconds north and longitude 87 degrees 43 minutes 25 seconds west, which is where the Goascorán River changed the course.” Basis of jurisdiction invoked: Art. 100(1) of the ICJ Rules of Court read together with Special Agreement between El Salvador and Honduras for the submission of a land, island and maritime frontier dispute between the two states of 24 May 1986, p. 356(1)



Judgment of 11 September, Land, Island and Maritime Frontier Dispute 487 (El Salvador v. Honduras) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to) Total

Public sittings

10 September 2002 to 18 December 2003 8, 9, 10, 12 September 2003 (1 year / 3 months / 8 days)

Orders Date of Order and Authority 27 November 2002 Court – President Guillaume

Content Formation of Chamber, fixing of time-limit and written observations on admissibility Composition of Chamber consisting of President Guillaume, Judges Rezek, Buergenthal, Judges ad hoc Torres Bernárdez and Paolillo 1 April 2003 – filing of the written observations by Honduras on the admissibility of the Application

Section B – Judgment Official citation: Application for Revision of the Judgment of 11 September 1992 in the Case concerning Land, Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), (El Salvador v. Honduras), Judgment, I.C.J. Reports 2003, p. 392 Date of Judgment: 18 December 2003 Authoritative text: French Composition of the Chamber: Judge Guillaume President of the Chamber; President Judges Rezek, Buergenthal, Judges ad hoc Torres Bernárdez, Paolillo; Registrar Couvreur. Headnotes: Article 61 of the Statute – Application for revision – Possibility for the Court at any time to require previous compliance with the terms of the Judgement whose revision is sought, before it admits proceedings in revision – No role played by the consent of the parties as to admissibility of an application for revision. New facts alleged by El Salavdor in respect of the sixth sector of the land boundary between El Salvador and Honduras established in the Chamber’s

488 Judgment of 11 September, Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) Judgement of 11 September 1992; avulsion of the river Goascorán; discovery of a further copy of the “Carta Esferica” and of the report of the El Activo expedition in 1794 – Legal basis of the Chamber’s decision in the original case – Alleged new facts not decisive factors in respect of the 1992 Judgment – No need to ascertain whether the other conditions laid down in Article 61 of the Statute are satisfied – Inadmissibility of the Application. Text of the operative paragraph(s) (p. 411, para. 60) THE CHAMBER, By four votes to one, Finds that the Application submitted by the Republic of El Salvador for revision, under Article 61 of the Statute of the Court, of the Judgment given on 11 September 1992, by the Chamber of the Court formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/­ Honduras: Nicaragua intervening) is inadmissible. IN FAVOUR: Judge Guillaume, President of the Chamber President; Judges Rezek, Buergenthal; Judgead hoc Torres Bernárdez AGAINST: Judge ad hoc Paolillo Declarations/Opinions Dissenting Opinion

Judge ad hoc Paolillo

Sources of Law ICJ Statute

Art. 26(2), p. 394(5) Art. 31(3), p. 394(4) Art. 40(2), p. 394(2) Art. 40(3), p. 394(2) Art. 61, p. 394(1), 396(12), 397(14), 398(17, 18), 398(19), 408(43), 408(44, 47, 48), 411(58, 59) Art. 62, p. 394(2)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art.

17, p. 394(5) 18(2), p. 394–5(5) 53(2), p. 395(10) 56, p. 395(8, 9) 56(2), p. 395(9) 56(3), p. 395(9) 92(2), p. 395(6) 99, p. 394(1)



Judgment of 11 September, Land, Island and Maritime Frontier Dispute 489 (El Salvador v. Honduras)

Sources of Law (cont.) Art. 99(2), p. 395(6), 398(18) Art. 100, p. 394(1) Art. 100(1), p. 394(3) ICJ case-law

Other case Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), Judgment, [I.C.J. Reports 1992, p. 351] p. 394(1), 396(12), 397(14, 15, 16), 398(17), 408(42, 43, 45), 409(51) Previous Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1985, p. 197(8, 10)], p. 398(18) Application for the Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Yugoslavia v. Bosnia and Herzegovina, Judgment, [I.C.J. Reports 2003, p. 11(15)], p. 398(18)

Representation of Parties El Salvador Agent

Mr. Gabriel Mauricio Gutiérrez Castro Dr. Alfredo Martinez Moreno

Co-Agents

H.E. Ms. Maria Eugenia Brizuela de Ávila, Minister for Foreign Affairs H.E. Mr. Rafael Zaldivar Brizuela Ambassador of El Salvador to the International Organisations in the Hague

Deputy Agent

Mr. Agustín Vásquez Gómez

Counsel & Advocates

Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma de Madrid Mr. Maurice Mendelson, Q.C., Professor Emeritus of International Law, University of London

Counsel

Mr. Mauricio Alfredo Clará Mr. Domingo E. Acevedo

Advisers

Ms. Beatriz Borja de Miguel Ms. Patricia Kennedy Ms. Ana Mogorrón Huerta

490 Judgment of 11 September, Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) El Salvador (cont.) Assistants

Mr. César Martinez Ms. Lilian Overdiek Ms. Cecilia Montoya de Guardado

Honduras Agent

H.E. Mr. Carlos López Conteras, former Minister for Foreign Affairs

Co-Agent

H.E. Mr. Julio Rendón Barnica, Ambassador of Honduras to the Netherlands

Counsel & Advocates

Mr. Pierre-MarieDupuy, Professor at the Université de Paris II (Panthéon-Assas) and Institut universitaire européen de Florence Mr. Luis Ignacio Sánchez Rodríguez, Professor of International Law, Universidad Complutense de Madrid Mr. Philipps Sands, Q.C., Professor of Law, University College London Mr. Carlos Jiménez Piernas, Professor of International Law, Universidad Alcalá, Madrid Mr. Richard Meese, avocet à la cour d’appel de Paris

Counsel

H.E. Mr. Anibal Quiñónez Abarca, Deputy Minister for Foreign Affairs H.E. Mr. Policarpo Callejas, Ambassador, Adviser to the Ministry of Foreign Affairs Mr. Miguel Tosta Appel, Chairman of the Honduran National Section of the El-Salvador-Honduras Demarcation Commission

REQUEST FOR THEiR INTERPRETATION OF THE JUDGMENT OF 31 MARCH 2004 IN THE CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS (Mexico v. United States of America) General List No.: 128 Mean(s) and date of institution of the case: Application (5 June 2008) Statement of claim/question: “Based on the foregoing, the Government of Mexico asks the Court to adjudge and declare as follows: (a) That the correct interpretation of the obligation incumbent upon the United States under paragraph 153 (9) of the Avena Judgment is that it is an obligation of result as it is clearly stated in the Judgment by the indication that the United States must provide ‘review and reconsideration of the convictions and sentences’; and that, pursuant to the interpretation of the foregoing obligation of result, (1) the United States, acting through all of its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, must take all measures necessary to provide the reparationof review and reconsideration mandated by the Avena Judgment in paragraph 153 (9); and (2) the United States, acting through all its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, must take all measures necessary to ensure that no Mexican national entitled to review and reconsideration under the Avena Judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation; (b) That the United States breached the Court’s Order of 16 July 2008 and the Avena Judgment by executing José Ernesto Medellín Rojas without having provided him review and reconsideration consistent with the terms of the Avena Judgment; and

492

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

(c) That the United States is required to guarantee that no other Mexican national entitled to review and reconsideration under the Avena Judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation.” Basis of jurisdiction invoked by the Applicant(s): Art. 60 of the ICJ Statute and Articles 98 and 100 of the Rules of Court Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

5 June 2008 to 19 July 2009

Provisional Measures

5 June 2008 to 16 July 2008 (1 month / 11 days)

Merits

16 July 2008 to 19 January 2009

Public sittings 19–20 June 2008

Orders Date of Order and Authority

Content

16 July 2008

Please refer Section B

Court President – Higgins

Section B – Provisional Measures Official citation: Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 311 Date of order: 16 July 2008 Authoritative text: English Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Registrar Couvreur.



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

493

Text of the operative paragraph(s) (p. 331, para. 80) THE COURT, I. By seven votes to five, Finds that the submission by the United States of America seeking the dismissal of the Application filed by the United Mexican States can not be upheld; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Abraham, Sepúlveda-Amor, Bennouna AGAINST: Judges Buergenthal, Owada, Tomka, Keith, Skotnikov II. Indicates the following provisional measures: (a) By seven votes to five, The United States of America shall take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the Request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America); IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Abraham, Sepúlveda-Amor, Bennouna AGAINST: Judges Buergenthal, Owada, Tomka, Keith, Skotnikov (b) By eleven votes to one, The Government of the United States of America shall inform the Court of the measures taken in implementation of this Order; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov AGAINST: Judge Buergenthal III. By eleven votes to one, Decides that, until the Court has rendered its judgment on the Request for interpretation, it shall remain seised of the matters which form the subject of this Order.

494

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov AGAINST: Judge Buergenthal Declarations/Opinions Dissenting Opinion

Judge Buergenthal

Joint Dissenting Opinion

Judges Owada, Tomka and Keith

Dissenting Opinion

Judge Skotnikov

Sources of Law UN Charter

Art. 94(1), p. 313(7)

ICJ Statute

Art. Art. Art. Art. Art.

36(1), p. 77–8(1) 36(2), p. 351(53) 38, p. 351(53) 41, p. 316(17, 18), 330(74) 60, p. 311, 313(8), 319(32), 323(44), 351(53, 54), 326(55, 56)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art.

38(4), p. 317(25) 73, p. 315(14) 73(2), p. 317(25) 74, p. 315(14) 74(3), p. 317(25, 27) 75, p. 315(14) 98, p. 312, 323(44) 100, p. 312

PCIJ case-law

Chorzów Factory, [Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 12], p. 323(47), 326(54)

ICJ case-law

Other case Avena and Other Mexican Nationals (Mexico v. United States of America), [I.C.J. Reports 2004(I), p. 12], p. 312, 312(1, 2), 313(4, 5, 6), 313(9, 10), 315(12, 13, 14), 316(18, 19), 317(23), 318(29, 30), 319(32, 33, 34), 320(35, 36), 321(37, 39), 322(41, 42), 323(47, 48), 324(49, 50), 325(51), 326(55, 56), 327(59, 60, 61), 329(67, 68, 69), 330(76, 77), 331(78) Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, [I.C.J. Reports 1999 (I), p. 36(12)], p. 323(47), 327(58)



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

495

Sources of Law (cont.) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, [I.C.J. Reports 1985, pp. 217– 218(46)], p. 326(54), 328(63) Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, [I.C.J. Reports 1950, p. 402], p. 328(63) LaGrand (German v. United States of America), Provisional Measures, Order of 3 March 1999, [I.C.J. Reports 1999(I), p. 15(22)], p. 328(65) Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17(23)], p. 328(66) Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107(22)], p. 328(66) Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, [I.C.J. Reports 2007(I), p. 11(32)], p. 329(66) Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, [I.C.J. Reports 1998, p. 257(37)], p. 330(72) Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 312(1), 313(6), 324(48), 328(63) 2005 Optional Protocol to the Vienna Convention on Consular Relations on 7 March 2005, p. 319(32)

Inter(national) legal Memorandum of US President, p. 324(50) references

Representation of Parties Mexico H.E. Mr. Juan Manuel Gómez-Robledo H.E. Mr. Santiago Oñate H.E. Mr. Alberto Székely Ms. Sandra Babcock Mr. Donald Francis Donovan

496

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

USA The Honorable William H. Taft, IV Mr. Stephen Mathias Ms. Catherine W. Brown Mr. James H. Thessin Sir Elihu Lauterpacht Mr. Daniel Paul Collins

Section C – Merits Official citation: Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 3 Date of judgment: 19 January 2009 Authoritative text: English Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, ­Sepúlveda-Amor, Bennouna, Skotnikov; Registrar Couvreur. Headnotes: Article 60 of the Statute of the Court – Independent basis of jurisdiction. Conditions on the exercise of jurisdiction to entertain a request for ­interpretation. – Question of the existence of a dispute as to the meaning or scope of paragraph 153 (9) of the Judgment of 31 March 2004 – For the Court to determine whether a dispute exists – No dispute as to whether paragraph 153 (9) lays down an obligation of result. Question of the existence of a dispute as to those upon whom the obligation of result specifically falls – Two possible approaches based on the Parties’ ­positions – Possible existence of a dispute as to those upon whom the obligation specifically falls – Possible absence of a dispute on this point failing a sufficiently precise indication. Question of the direct effect of the obligation established in paragraph 153 (9) – No decision in the Judgment of 31 March 2004 as to the direct effect of the obligation – Question of direct effect therefore cannot be the subject of a request for interpretation – Reiteration of the principle that considerations of



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

497

domestic law cannot in any event relieve the Parties of obligations deriving from judgments of the Court. Question of breach by the United States of its legal obligation to comply with the Order indicating provisional measures of 16 July 2008 – Court’s jurisdiction to rule on this question in proceedings on a request for interpretation – ­Question of possible violation by the United States of the Judgment of 31 March 2004 – Lack of jurisdiction of the Court to consider this question in proceedings for interpretation. Mexico’s request for the Court to order the United States to provide guarantees of non-repetition – Binding character of the Judgment of 31 March 2004 – Undertakings already given by the United States. Text of the operative paragraph(s) (p. 20, para. 61) THE COURT, (1) By eleven votes to one, Finds that the matters claimed by the United Mexican States to be in issue between the Parties, requiring an interpretation under Article 60 of the Statute, are not matters which have been decided by the Court in its Judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), including paragraph 153 (9), and thus cannot give rise to the interpretation requested by the United Mexican States; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov; AGAINST: Judge Sepúlveda-Amor (2) Unanimously, Finds that the United States of America has breached the obligation incumbent upon it under the Order indicating provisional measures of 16 July 2008, in the case of Mr. José Ernesto Medellín Rojas; (3) By eleven votes to one, Reaffirms the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment and takes note of the undertakings given by the United States of America in these proceedings; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov AGAINST: Judge Abraham

498

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

(4) By eleven votes to one, Declines, in these circumstances, the request of the United Mexican States for the Court to order the United States of America to provide guarantees of non-repetition; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov AGAINST: Judge Sepúlveda-Amor (5) By eleven votes to one, Rejects all further submissions of the United Mexican States IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov AGAINST: Judge Sepúlveda-Amor. Declarations/Opinions Declaration

Judges Koroma and Abraham

Dissenting Opinion

Judge ad hoc Sepúlveda-Amor

Sources of Law UN Charter

Article 94(1), p. 13(31)

ICJ Statute

Art. 41, p. 5(3) Art. 40(2), p. 5(2) Art. 40(3), p. 5(2) Art. 60, p. 9(13, 14, 15, 16, 17), 12(28, 29), 14(35), 17(42, 45), 18(48, 49), 19(51), 20(59, 61) Art. 36(2), p. 9(17)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art.

PCIJ case-law

Chorzów Factory, [Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 12], p. 13(29)

ICJ case-law

Current Order of 16 July 2008, p. 5(3), 9(15, 16), 10(19), 12(27), 13(25), 15(37), 18(49, 50), 19(53, 54)

73, p. 5(3) 74, p. 5(4) 75, p. 5(4) 98, p. 5(1) 98(2), p. 15(38) 98(3), p. 5(4), 10(22) 98(4), p. 6(6, 8), 10(22) 100, p. 5(1)



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

499

Sources of Law (cont.) Previous Avena and Other Mexican Nationals (Mexico v. United States of America)], p. 5(1), 6(9), 8(11), 9(13, 15), 10(19, 20, 23, 24), 11(25), 12(26, 27, 28), 13(31), 14(32), 15(36, 38), 16(39, 40), 17(43, 44), 18(50), 19(54, 55), 20(56, 57, 58) Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, [I.C.J. Reports 1950, p. 402], p. 10(21), 17(44) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, [I.C.J. Reports 1985, p. 216– 217(44)], p. 10(21) Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, [I.C.J. Reports 1999 (I), p. 36(12)], p. 10(21) Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 8(11, 15), 20(55)

Inter(national) references

Medellín v. Texas (Supreme Court Reporter, Vol. 128, 2008, p. 1346)], p. 13(31)

Representation of Parties Mexico Agents

H.E. Mr. Juan Manuel Gómez-Robledo, Ambassador, UnderSecretary for Multilateral Affairs and Human Rights, Ministry of Foreign Affairs of Mexico H.E. Mr. Joel Antonio Hernández García, Ambassador, Legal Adviser, Ministry of Foreign Affairs of Mexico H.E. Mr. Jorge Lomónaco Tonda, Ambassador of Mexico to the Kingdom of the Netherlands

USA Agent

Mr. John B. Bellinger, III, Legal Adviser, United States Department of State

Co-Agent

Mr. James H. Thessin, Deputy Legal Adviser, United States Department of State

CERTAIN CRIMINAL PROCEEDINGS IN FRANCE (Republic of the Congo v. France) General List No.: 129 Mean(s) and date of institution of the case: Application (9 December 2002) Statement of claim/question: Congo requested the Court to declare: that the French Republic, “shall cause to be annulled the measures of investigation and prosecution taken by the Procureur de la République of the Paris Tribunal de grande instance, the Procureur de la République of the Meaux Tribunal de grande instance and investigating judges of those courts”: whereas it contended that these measures involved first, “violation of the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations, exercise its authority on the territory of another State, by unilaterally attributing to itself universal jurisdiction in criminal matters and by arrogating to itself the power to prosecute and try the Minister of Interior of a Foreign State for crimes allegedly committed in the connection with the exercise of his powers for the maintenance of public order in his country”, and, second, “violation of the criminal immunity of a foreign Head of State – an international customary rule recognized by the jurisprudence of the Court . . .”. Request for provisional measures: Request by the Republic of Congo “The Proceedings in question are perturbing the international relations of the Republic of Congo as a result of the publicity accorded, in flagrant breach of French law governing the secrecy of criminal investigations, to the actions of the investigating judge, which impugn the honour and reputation of the Head of State, of the Minister of the Interior and of the Inspector-General of the Armed Forces and, in consequence, the international standing of the Congo. Furthermore, those proceedings are damaging to the traditional links of Franco-Congolese friendship. If these injurious proceedings were to continue, that damage would become irreparable . . .” Basis of jurisdiction invoked by the Applicant(s): Article 38(5) of the Rules of Court



Certain Criminal Proceedings in France (Republic of the Congo v. France)

501

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

9 December 2002 to 16 November 2010 (7 years / 11 months / 7 days)

Provisional Measures

9 December 2002 to 17 June 2003 (6 months / 8 days)

Public sittings

28–29 April 2003

Orders Date of Order and Authority

Content

17 June 2003 Court – President Shi

Please refer Section B

11 July 2003 President Shi

Fixing of time-limits: 11 November 2003 – Memorial of the Republic of the Congo 11 May 2004 – Counter-Memorial of France

17 June 2004 Court – President Shi

Authorisation of filing of a reply by the Congo and a rejoinder by France and fixing of time-limits: 10 December 2004 – Reply of the Republic of the Congo 10 June 2005 – Rejoinder of France

8 December 2004 President Shi

Extension of time-limits: 10 January 2005 – Reply of the Republic of the Congo 10 August 2005 – Rejoinder of France

29 December 2004 President Shi

Extension of time-limits: 10 July 2005 – Reply of the Republic of the Congo 11 August 2006 – Rejoinder of France

11 July 2005 President Shi

Extension of time-limits: 11 January 2006 – Reply of the Republic of the Congo 10 August 2007 – Rejoinder of France

11 January 2006 President Shi

Extension of time-limits: 11 July 2006 – Reply of the Republic of the Congo 11 August 2008 – Rejoinder of France

16 November 2009 Court – President Owada

Authorisation of additional pleadings 16 February 2010 – Republic of Congo 17 May 2010 – France

16 November 2010 Court – President Owada

Discontinuance of the proceedings and removal of the case from the List.

502

Certain Criminal Proceedings in France (Republic of the Congo v. France)

Request for extension of time-limits State Party

Remarks

Republic of Congo (4 times) Request for filing of Reply to be extended for six months (from 10 January 2005) – No objection by France provided time-limit to file Rejoinder by France is also extended likewise Request for filing of Reply to be extended for six months (from 10 July 2005) – No objection by France provided time-limit to file Rejoinder by France is also extended likewise. Request for filing of Reply to be extended for six months (from 11 January 2006) – No objection by France provided time-limit to file Rejoinder by France is also extended likewise. France acceptance was linked only to the judicial proceedings in France.

Section B – Provisional Measures Official citation: Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 102 Date of order: 17 June 2003 Authoritative text: French Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka; Judge ad hoc de Cara; Registrar Couvreur. Text of the operative paragraph(s) (p. 112, para. 41) THE COURT By fourteen votes to one, Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka AGAINST: Judge ad hoc de Cara



Certain Criminal Proceedings in France (Republic of the Congo v. France)

503

Declarations/Opinions Joint Separate Opinion

Judges Koroma and Vereshchetin

Dissenting Opinion

Judge ad hoc de Cara

Sources of Law UN Charter

Art. 2(1), p. 102–3(1), 107(22)

ICJ Statute

Art. 41, p. 102(6), 107(22), 1123(41) Art. 48, p. 102

ICJ Rules of Court

Art. Art. Art. Art. Art. Art.

ICJ case-law

Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [I.C.J. Reports 1996(I), p. 22(41)], p. 111(39)

31(2), p. 104(8) 38(5), p. 102, 103(3, 5, 6), 106(21) 73, p. 102 74, p. 102 74(2), p. 103–4(7) 74(3), p. 103–4(7)

Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, [I.C.J. Reports 1986, p. 9(18)], p. 111(39) Treaties

1984 UN Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment of 10 December 1984, p. 105(13)

Inter(national) legal Application for a judicial investigation of the alleged offences references issued on 23 January 2002 issued by the Procureur de Républic of the Meaux Tribunal de grande instance, p. 104(10), 105(11, 12, 13) Article 656 of the Code of Criminal Procedure, p. 106(16), 109(31, 32), 111(37) Articles 689(1) of French Code of Criminal Procedure, p. 105(11, 12, 13) Articles 689(2) of French Code of Criminal Procedure, p. 105(11, 12) 8 April 2003 Letter from the Foreign Minister of France to the Court

SOVEREIGNTY OVER PEDRA BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE (Malaysia/Singapore) General List No.: 130 Mean(s) and date of institution of the case: Special Agreement (24 July 2003) Statement of claim/question: “To determine whether sovereignty over (a) Pedra Branca/Pulau Batu Puteh; (b) Middle Rocks; (c) South Ledge, belongs to Malaysia or the Republic of Singapore” Basis of jurisdiction invoked: Special Agreement between Malaysia and ­Singapore of 6 February 2003 entered into force on 9 May 2003 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

24 July 2003 to 23 May 2008

Public sittings 6 to 23 November 2007

Orders Date of Order and Authority 1 September 2003 President Shi

Content Fixing of time-limits: 25 March 2004 – Filing by each of the Parties of a Memorial 25 January 2005 – Filing by each of the Parties of a Counter-Memorial

1 February 2005 Court – President Shi

Fixing of time-limits: 25 November 2005 – Filing of Reply by Malaysia and Singapore



Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

505

Section B – Merits Official citation: Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 12 Date of Judgment: 23 May 2008 Authoritative text: English Composition of the Court: Vice-President Al-Khasawneh, Acting President; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Dugard, Sreenivasa Rao; RegistrarCouvreur. Table of Contents: 1. Chronology of the procedure 2. Geographical location and characteristics 3. General historical background 4. History of the dispute 5. Sovereignty over pedra branca/pulau batu puteh 5.1. Arguments of the Parties 5.2. The question of the burden of proof 5.3. Legal status of Pedra Branca/Pulau Batu Puteh before the 1840s 5.3.1. Original title to Pedra Branca/Pulau Batu Puteh 5.3.2. The legal significance of the 1824 Anglo-Dutch Treaty 5.3.3. The relevance of the 1824 Crawfurd Treaty 5.3.4. The legal significance of the letter “of donation” of 1825 5.3.5. Conclusion 5.4. Legal status of Pedra Branca/Pulau Batu Puteh after the 1840s 5.4.1. Applicable law 5.4.2. The process for the selection of the site for Horsburgh lighthouse 5.4.3. The construction and commissioning of Horsburgh Lighthouse, 1850–1851 5.4.4. The conduct of the Parties, 1852–1952 (a) Straits lights system and related British and Singapore legislation (b) Constitutional developments and official descriptions of Singapore and Malaysia (c) Johor regulation of fisheries in the 1860s 5.4.5. The 1953 correspondence 5.4.6. The conduct of the Parties after 1953 (a) Investigation by Singapore of shipwrecks in the waters around Pedra Branca/Pulau Batu Puteh

506

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)



(b) Visits to Pedra Branca/Pulau Batu Puteh (c) Naval patrols and exercises around Pedra Branca/ Pulau Batu Puteh by Malaysia and Singapore (d) The display of the British and Singapore ensigns on Pedra Branca/Pulau Batu Puteh (e) The installation by Singapore of military communications equipment on the island in 1977 ( f ) Proposed reclamation by Singapore to extend the island (g) A Malaysian Petroleum Agreement 1968 (h) The delimitation of Malaysia’s territorial sea 1969 (i) Indonesia-Malaysia Continental Shelf Agreement 1969 and Territorial Sea Agreement 1970 ( j) The Indonesia-Singapore Territorial Sea Agreement 1973 (k) Inter-State co-operation in the Straits of Singapore (l) Official publications (m) Official maps 5.5. Conclusion 6. Sovereignty over Middle Rocks and South Ledge 6.1. Arguments of the Parties 6.2. Legal status of Middle Rocks 6.3. Legal status of South Ledge 7. Operative Clause Text of the operative paragraph(s) (p. 101, para. 300) THE COURT, (1) By twelve votes to four, Finds that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of Singapore; IN FAVOUR: Vice-President, Acting President, Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Sreenivasa Rao AGAINST: Judges Parra-Aranguren, Simma, Abraham; Judge ad hoc Dugard (2) By fifteen votes to one, Finds that sovereignty over Middle Rocks belongs to Malaysia; IN FAVOUR: Vice-President, Acting President, Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Dugard AGAINST: Judge ad hoc Sreenivasa Rao



Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

507

(3) By fifteen votes to one, Finds that sovereignty over South Ledge belongs to the State in the territorial waters of which it is located. IN FAVOUR: Vice-President, Acting President, Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, SepúlvedaAmor, Bennouna, Skotnikov; Judges ad hoc Dugard, Sreenivasa Rao AGAINST: Judge Parra-Aranguren. Declarations/Opinions Declaration

Judge Ranjeva

Separate Opinion

Judge Parra-Aranguren

Joint Dissenting Opinion

Judges Simma and Abraham

Declaration

Judge Bennouna

Dissenting Opinion

Judge ad hoc Dugard

Separate Opinion

Judge ad hoc Sreenivasa Rao

Sources of Law ICJ Statute

Art. Art. Art. Art. Art. Art.

17(2), p. 20(8) 31 (3), p. 18(7) 36(1), p. 18(2) 38(1), p. 18(2) 40, p. 18(2) 40 (3), p. 18(3)

ICJ Rules of Court

Art. Art. Art. Art. Art. Art. Art. Art.

13(1), p. 20(8) 13(2), p. 20(8) 31, p. 20(8) 53 (2), p. 20(11) 56(3), p. 20(10) 60(2), p. 21(15) 61(4), p. 21(13) 72, p. 21(13)

PCIJ case-law

Legal Status of Eastern Greenland (Denmark v. Norway), [P.C.I.J. Series A/B No. 53, p. (39)], p. 36 (63, 67)

ICJ case-law

Current Order of 1 September 2003, p. 18(3) Order of 1 February 2005, p. 18(5)

508

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

Sources of Law (cont.) Previous Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Judgment, [I.C.J. Reports 2007(II), p. 697–98(117)], p. 27(32), 100(294) Case concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), Judgment of 17 December 2002: I.C.J. Reports 2002, p. 682(135)], p. 28(32), 70(179) Temple of Preah Vihear, Merits, Judgment, [I.C.J. Reports 1962, p. 16], p. 31(43), 50(120) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [I.C.J. Reports 2007, p. 75(204)], p. 31(45) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1984, p. 437(101)], p. 31(45) Gulf of Maine Case, [I.C.J. Reports 1984, p. 305(130)], p. 51(121) Fisheries Jurisdiction (UK v. Norway), Judgment [I.C.J. Reports 1951, p. 116], p. 81(225) North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), [I.C.J. Reports 1969, p. 26(30)], p. 81(228) Nuclear Tests (Australia v. France; New Zealand v. France), Judgment [I.C.J. Reports 1974], p. 267(44)], p. 82(229), Nuclear Tests (New Zealand v. France), Judgment [I.C.J. Reports 1974, p. 473(47)], p. 82(229), Frontier Dispute (Benin/Niger), I.C.J. Report 2005, p. 119(44)], p. 95(271) Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 579(367)], p. 97(281) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 101(2040], p. 100(293, 294, 295, 296) Treaties

2003 Special Agreement between Malaysia and Singapore, 17(1), 18(4), 27(31) 1814 London Convention of 13 August 1814, p. 43(96)



Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

509

Sources of Law (cont.) 1824 Treaty between Great Britain and the Netherlands (AngloDutch Treaty), p. 25(20, 21), 33(51), 34(56), 40(81, 83), 42(90, 91, 92, 93), 43(95, 96), 44(97, 98, 99, 100), 45(101, 102), 46(106, 107), 47(108, 109), 48(112), 49(115, 116), 50(120), 98(285) 1819 Treaty between the East India Company and the Temenggong of Johor of 30 January 1819, p. 25(21), 56(138) 1819 Treaty between Sir Stamford Raffles and Sultan Hussein of Johor and the Temenggong of Johor of 6 February 1819, p. 25(21), 56(138) 1824 Treaty of Friendship and Alliance between the East India Company and the Sultan of Johor and Temenggong of Johor 2 August 1824 (Crawfurd Treaty), p. 25(22), 45(101, 102, 103), 50(120), 56(138), 73(192, 193), 74(197), 75(200) 1927 Straits Settlement and Johor Territorial Waters Agreement (the 1927 Agreement) between the Governor of the Straits Settlements and the Sultan of Johor, p. 26(28), 50(120), 70(181), 71(182), 72(187, 188, 189), 74(197), 75(200), 92(261) 1865 Convention for the Cape Spartel lighthouse between Morocco and a number of maritime Powers, p. 58(143) 1948 Johor Agreement between the British Crown and the Sultan of Johor, p. 77(211, 212), 79(218) 1948 the Federation of Malaya Agreement between the British Crown and nine Malay States, p. 77(211, 212), 79(218) 1982 Law of the Sea Convention, p. 82(232), 99(292) 1957 Agreement between the United Kingdom and Malaya, p. 85(241) 1965 Agreement relating to the Separation of Singapore from Malaysia, p. 86(241) 1969 Indonesia-Malaysia Continental Shelf Agreement, p. 89(251) 1958 Geneva Convention on the Territorial Sea, p. 89(254) 1969 Indonesia-Malaysia Continental Shelf Agreement, p. 90(257) 1970 Indonesia-Malaysia Territorial Sea Agreement, p. 91(259) 1973 Indonesia-Singapore Territorial Sea Agreement, p. 91(259) Inter(national) legal 1979 Diplomatic Note dated 14 February 1980 of Singapore references rejected Malaysia’s “claim” to Pedra Branca/Pulau Batu Puteh, p. 27(30), 28(33, 36) 1902 Meerauge Arbitral Award (Austria/Hungary), 13 September 1902, p. 32(48)

510

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

Sources of Law (cont.) Hugo Grotius, De Jure Praedae, Vol. I Translation, 1950 (Gwladys L. Williams), Classics of International Law, p. 314, p. 33(53) 1824 Report of 10 January 1824 to the Government of India by John Crawfurd, p. 33(56) Island of Palmas (Netherlands/United States of America), 4 April 1928, [RIAA, Vol. II (1949), p. 840], p. 36(67), 97(280) 1825 Letter from the Government of India to John Crawfurd of 4 March 1825, p. 45(101), 50(121) 1825 Letter of Sultan Abdul Rahman to Sultan Hussian relating to exent of mainland territories in peninsular Malaya, p. 48(112, 113) Belcher and Thomson reports, p. 54(129) 1844 Letter of Governor to the Secretary of the Government of India of 28 November 1844, p. 54(129), 55(132), 58(145), 60(147), 61(150), 73(193, 194), 75(200, 205) 1844 Replies of Sultan and Temenggong, p. 54(229), 58(145), 60(147), 61(150) 1860 Proclamation of Sultan of Selangor of 23 August 1860, p. 57(140) 1845 Letter of Governor Butterworth of 22 August 1845, p. 59(146) 1845 the Court of Directors of the Company authorized the Governor General of India in Council 15 October 1845, p. 59(146) 1846 Approval of Pedra Branca/Pulau Batu Puteh as the site for lighthouse by the President in Council in India of 30 October 1846, p. 60(147) 1850 Report on the completion of the season’s operations on Pedra Branca/Pulau Batu Puteh for the construction of the lighthouse of 2 November 1850, p. 63(155) 1852 Account of the Horsburgh Lighthouse (1852), published in the Journal of the Indian Archipelago and Eastern Asia (Vol. 6, p. 376), p. 64(160) 1852 Light Dues Act 1852 (India), p. 67(170) 1854 Light Dues Act 1854 (India), p. 67(170, 171) 1912 the Light-Houses Ordinance 1912 (Straits Settlements), p. 67(170, 171) 1957 Light Dues Ordinance 1957, p. 67(170), 68(173, 174)



Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

511

Sources of Law (cont.) 1953 Letter of Acting Secretary of Johor of 21 September 1953, p. 74(196, 197), 74(205), 77(211), 78(215), 80(224), 81(225, 226, 228), 82(230) 1969 Light Dues Act, p. 68(173) 1973 Light Dues Repeal Act 1973, p. 67(170), 68(173) 1843 Foreign Jurisdiction Act of 1843, p. 69(175, 176) 1948 Curfew Order, p. 92(261) 1953, Rural Board Report of 1953, p. 92(261) Sobhuza II v. Miller [1926] AC 518 and Secretary of State v. Sardar Rustan Khan (1941) LR 68 IA 109, p. 69(176) Decisions of the British Privy Council, and Nyali v. AttorneyGeneral [1956] 1 QB 1, p. 69(176) Sir Kenneth Roberts- Wray, Q.C., in Commonwealth and Colonial Law (1966), p. 185–203, p. 69(176) 1991 Protected Places Order of Singapore, p. 70(179, 180) Sultan of Johor v. Tunku Abubakar [1952] AC 318, p. 79(216) Territorial Sovereignty and Scope of the Dispute, Eritrea/Yemen (1998) 22 RIAA, pp. 209, 219, para. 19 and p. 317–318, para. 474, p. 80(222) 1968 Letter of Promulgation” issued on 16 July 1968 by the Chief of the Malaysian navy, p. 86(242), 98(286) 1969 Legislation of 1969 Malaysia extending territorial waters, p. 89(254), 90(256) 2002 Decision regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia, 13 April 2002, p. 28, para. 3.28, p. 95(271) 1985 Fisheries Act of Malaysia, p. 98(286)

Representation of Parties Malaysia Agent

H.E. Tan Sri Abdul Kadir Mohamad, Ambassador-at-Large, Ministry of Foreign Affairs of Malaysia, Adviser for Foreign Affairs to the Prime Minister,

Co-Agent

H.E. Dato’ Noor Farida Ariffin, Ambassador of Malaysia to the Kingdom of the Netherlands,

512

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

Malaysia (cont.) Counsel and advocates

H.E. Dato’ Seri Syed Hamid Albar, Minister for Foreign Affairs of Malaysia, H.E. Tan Sri Abdul Gani Patail, AttorneyGeneral of Malaysia, Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of Cambridge, member of the Institut de droit international, member of the Permanent Court of Arbitration, Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international, Mr. Nicolaas Jan Schrijver, Professor of Public International Law, Leiden University, associate member of the Institut de droit international, Mr. Marcelo G. Kohen, Professor of International Law, Graduate Institute of International Studies, Geneva, associate member of the Institut de droit international, Ms. Penelope Nevill, college lecturer, Downing College, University of Cambridge,

Counsel

Datuk Azailiza Mohd Ahad, Head of International Affairs Division, Chambers of the Attorney-General of Malaysia, Datin Almalena Sharmila Johan Thambu, Deputy Head 1, International Affairs Division, Chambers of the AttorneyGeneral of Malaysia, Ms. Suraya Harun, Senior Federal Counsel, International Affairs Division, Chambers of the Attorney-General of Malaysia, Mr. Mohd Normusni Mustapa Albakri, Federal Counsel, International Affairs Division, Chambers of the AttorneyGeneral of Malaysia, Mr. Faezul Adzra Tan Sri Gani Patail, Federal Counsel, International Affairs Division, Chambers of the AttorneyGeneral of Malaysia, Ms. Michelle Bradfield, Research Fellow, Lauterpacht Centre for International Law, University of Cambridge, Solicitor (Australia),

Advisers

Dato’ Hamsan bin Saringat, Director, State Economic Planning Unit, Johor State, Mr. Abd. Rahim Hussin, Under-Secretary, Maritime Security Policy Division, National Security Council, Department of the Prime Minister of Malaysia,



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Malaysia (cont.) Mr. Raja Aznam Nazrin, Under-Secretary, Adjudication and Arbitration, Ministry of Foreign Affairs of Malaysia, Capt. Sahak Omar, Director General, Department of Hydrography, Royal Malaysian Navy, Mr. Tuan Haji Obet bin Tawil, Deputy Director 1, Land and Mines Office of Johor, Dr. Hajah Samsiah Muhamad, Director of Acquisition, Documentation and Audiovisual Centre, National Archives, Cdr. Samsuddin Yusoff, State Officer 1, Department of Hydrography, Royal Malaysian Navy, Mr. Roslee Mat Yusof, Director of Marine, Northern Region, Marine Department Peninsular Malaysia, Mr. Azmi Zainuddin, Minister-Counsellor, Embassy of Malaysia in the Kingdom of the Netherlands, Ms. Sarah Albakri Devadason, Principal Assistant Secretary, Adjudication and Arbitration Division, Ministry of Foreign Affairs of Malaysia, Mr. Mohamad Razdan Jamil, Special Officer to the Minister for Foreign Affairs of Malaysia, Ms. Haznah Md. Hashim, Principal Assistant Secretary, Adjudication and Arbitration Division, Ministry of Foreign Affairs of Malaysia, Consultant

Professor Dato’ Dr. Shaharil Talib, Head of Special Research Unit, Chambers of the Attorney-General of Malaysia,

Technical Advisers

Mr. Tan Ah Bah, Director of Survey (Boundary Affairs Section), Department of Survey and Mapping, Professor Dr. Sharifah Mastura Syed Abdullah, Dean of the Faculty of Social Sciences and Humanities, National University of Malaysia, Professor Dr. Nik Anuar Nik Mahmud, Director of the Institute for Malaysian and International Studies, National University of Malaysia, Mr. Ahmad Aznan bin Zakaria, Principal Assistant Director of Survey (Boundary Affairs Section), Department of Survey and Mapping, Mr. Hasnan bin Hussin, Senior Technical Assistant (Boundary Affairs Section), Department of Survey and Mapping,

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Singapore Agent

H.E. Mr. Tommy Koh, Ambassador-at-Large, Ministry of Foreign Affairs of the Republic of Singapore, Professor of Law at the National University of Singapore,

Co-Agent

H.E. Mr. Anil Kumar s/o N T Nayar, Ambassador of the Republic of Singapore to the Kingdom of the Netherlands,

Counsel and advocates

H.E. Mr. S. Jayakumar, Deputy Prime Minister, Co-ordinating Minister for National Security and Minister for Law, Professor of Law at the National University of Singapore, H.E. Mr. Chan Sek Keong, Chief Justice of the Republic of Singapore, H.E. Mr. Chao Hick Tin, Attorney-General of the Republic of Singapore, Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, Chairman of the United Nations International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de droit international, Distinguished Fellow, All Souls College, Oxford, Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, member and former Chairman of the United Nations International Law Commission, associate member of the Institut de droit international, Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the New York Bar, Frere Cholmeley/Eversheds, Paris, Ms. Loretta Malintoppi, avocat à la Cour d’appel de Paris, member of the Rome Bar, Frere Cholmeley/Eversheds, Paris,

Counsel

Mr. S. Tiwari, Principal Senior State Counsel, Chambers of the Attorney-General of the Republic of Singapore, Mr. Lionel Yee, Senior State Counsel, Chambers of the Attorney-General of the Republic of Singapore, Mr. Tan Ken Hwee, Senior Assistant Registrar, Supreme Court of Singapore, Mr. Pang Khang Chau, Deputy Senior State Counsel, Chambers of the Attorney-General of the Republic of Singapore, Mr. Daren Tang, State Counsel, Chambers of the AttorneyGeneral of the Republic of Singapore, Mr. Ong Chin Heng, State Counsel, Chambers of the AttorneyGeneral of the Republic of Singapore,



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Singapore (cont.) Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris X-Nanterre, Advisers

Mr. Parry Oei, Chief Hydrographer, Maritime and Port Authority of Singapore, Ms. Foo Chi Hsia, Deputy Director, Ministry of Foreign Affairs, Republic of Singapore, Mr. Philip Ong, Assistant Director, Ministry of Foreign Affairs, Republic of Singapore, Ms. Yvonne Elizabeth Chee, Second Secretary (Political), Embassy of the Republic of Singapore in the Netherlands, Ms. Wu Ye-Min, Country Officer, Ministry of Foreign Affairs, Republic of Singapore,

MARITIME DELIMITATION IN THE BLACK SEA (Romania v. Ukraine)

General List No.: 132 Mean(s) and date of institution of the case: Application (16 September 2004) Statement of claim/question: “Romania respectfully requests the ourt to draw a single maritime boundary dividing the maritime areas of Romania and Ukraine in the Black Sea, having the following description (a) from Point F, at 45°05'21"N, 30°02'27"E, on the 12 nm arc surrounding Serpents’ Island, to Point X, at 45°14'20"N, 30°29'12"E; (b) from Point X in a straight segment to Point Y, at 45°11'59"N, 30°49'16"E; (c) then on the line equidistant between the relevant Romanian and Ukrainian adjacent coasts, from Point Y, passing through Point D, at 45°12'10"N, 30°59'46"E, to Point T, at 45°09'45"N, 31°08'40"E; (d) and then on the line median between the relevant Romanian and Ukrainian opposite coasts, from Point T − passing through the points of 44°35'00"N, 31°13'43"E and of 44°04'05"N, 31°24'40"E, to Point Z, at 43°26'50"N, 31°20'10"E. Basis of jurisdiction invoked by the Applicant(s): Paragraph 4(h) of the Additional Agreement constituted by an Exchange of Letters of 2 June 1997 between the Ministers of Foreign Affairs of Romania and Ukraine Section A – Procedural and Organizational Aspects Duration and Public sittings Total

Duration (from – to)

Public sittings

16 September 2004 to 3 February 2009

Between 2 and 19 September 2008

Orders Date of Order and Authority 19 November 2004 Court – President Shi

Content Fixing of time-limits for filing of the written pleadings 19 August 2005 – Memorial of Romania 19 May 2006 – Counter-Memorial of Ukraine



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Orders (cont.) 30 June 2006 Court – President Higgins

Authorization of filing of a Reply by Romania and a Rejoinder by Ukraine and fixing of time-limits: 22 December 2006 – Reply of Romania 15 June 2007 – Rejoinder of Ukraine

8 June 2007 Extension of time-limits: Court – President Higgins 6 July 2007 – Rejoinder of Ukraine

Request for extension of time-limits State Party Ukraine (1 time)

Remarks Request to extend filing of Rejoinder from 15 June 2007 to 6 July 2007 – No objection by Romania provided the extension would not influence the fixing of oral hearings

Section B – Merits Official citation: Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61 Date of order: 3 February 2009 Authoritative text: French Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Cot, Oxman; Registrar Couvreur. Table of Contents: 1. Chronology of the Procedure 2. General Geography 3. Preliminary Legal Issues 3.1. Subject-matter of the dispute 3.2. Jurisdiction of the Court and its scope 3.3. Applicable law 4. Existing Maritime Delimitation between the Parties (Effect of the ProcesVerbaux of 1949, 1963 and 1974, as well as the 1949 and 1961 Treaties between Romania and the USSR and the 2003 Treaty between Romania and Ukraine) 5. Relevant Coasts 5.1. The Romanian relevant coast 5.2. The Ukrainian relevant coast

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6. Relevant Maritime Area 7. Delimitation Methodology 8. Establishment of the Provisional Equidistance Line 8.1. Selection of base points 8.2. Construction of the provisional equidistance line 9. Relevant Circumstances 9.1. Disproportion between lengths of coasts 9.2. The enclosed nature of the Black Sea and the delimitations already effected in the region 9.3. The presence of Serpents’ Island in the area of delimitation 9.4. The conduct of the Parties (oil and gas concessions, fishing activities and naval patrols) 9.5. Any cutting off effect 9.6. The security considerations of the Parties 10. The Line of Delimitation 11. The Disproportionality Test 12. The Maritime Boundary Delimiting the Continental Shelf and Exclusive Economic Zones 13. Operative Clause Text of the operative paragraph(s) (p. 74, para. 219) THE COURT, Unanimously, Decides that starting from Point 1, as agreed by the Parties in Article 1 of the 2003 State Border Régime Treaty, the line of the single maritime boundary delimiting the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea shall follow the 12-nautical-mile arc of the territorial sea of Ukraine around Serpents’ Island until Point 2 (with co-ordinates 45° 03'18.5"N and 30° 09'24.6"E) where the arc intersects with the line equidistant from Romania’s and Ukraine’s adjacent coasts. From Point 2 the boundary line shall follow the equidistance line through Points 3 (with co-ordinates 44° 46'38.7"N and 30° 58'37.3"E) and 4 (with co-ordinates 44° 44'13.4"N and 31° 10'27.7"E) until it reaches Point 5 (with co-ordinates 44° 02'53.0"N and 31° 24'35.0"E). From Point 5 the maritime boundary line shall continue along the line equidistant from the opposite coasts of Romania and Ukraine in a southerly direction starting at a geodetic azimuth of 185° 23'54.5" until it reaches the area where the rights of third States may be affected.



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Sources of Law UN Charter

Art. 2(1), p. 102–3(1), 107(22)

ICJ Statute

Art. 31(3), p. 65(4) Art. 36(1), p. 70(20) Art. 38, p. 75(31) Art. 38(1), p. 77(36) Art. 40(2), p. 64(2) Art. 40(2), p. 64(3) Art. 48, p. 102 Art. 63(1), p. 65(3)

ICJ Rules of Court Art. 31(2), p. 104(8) Art. 38(5), p. 102, 103(3, 5, 6), 106(21) Art. 43, p. 64(3) Art. 43(3), p. 65(3) Art. 53(2), p. 65(8) Art. 56, p. 65(7) Art. 56(2), p. 65(7) Art. 61(4), p. 66(10) ICJ case-law

Current case Order of 19 November 2004, p. 65(5) Order of 30 June 2006, p. 65(5) Order of 8 June 2007, p. 65(6) Other cases Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) [I.C.J. Reports 2007(II), p. 659, p. 73(26)], 86(68), 101(116), 103(120), 122(185) Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, [I.C.J. Reports 2008, p. 31(45)], p. 86(68) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, [I.C.J. Reports 2007(I), p. 128(204)], p. 86(68) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1984, p. 437(101)], p. 86(68) North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands), [I.C.J. Reports 1969, p. 51(96)], p. 88(77), 97(99), 100(111), 112(155), 116(163) Case concerning the Continental Shelf (Tunisia/Libya), [I.C.J. Reports 1982, p. 61(73)], p. 88(77), 97(99), 128(204)

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Sources of Law (cont.) Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment [I.C.J. Reports 1993, p. 67(64)], p. 100(111), 103(122), 116(165) Continental Shelf (Libya/ Malta), [I.C.J. Reports 1985, p. 46(60)], p. 101(116), 110(149), 116(165), 122(185) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea Intervening), Judgment, [I.C.J. Reports 2002, p. 441(288)], p. 111(39), 112(155), 116(165) Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, [I.C.J. Reports 1986, p. 9(18)], p. 111(39) Fisheries Jurisdiction (UK v. Norway), [I.C.J. Reports 1951, p. 132], p. 108(137) Gulf of Maine Case, [I.C.J. Reports 1984, p. 313(157)], p. 117(167), 126(198) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 104(219)], p. 122(185) Treaties

1940 Soviet-Romanian Agreement of June 28 1940, p. 82(55, 56) 1945 Soviet-Czechoslovak Agreement of June 29, 1945, p. 82(55) 1947 Paris Peace Treaty between the Allied and Associated Powers and Romania, p. 82(56) 1948 Protocol to Specify the Line of the State Boundary between Romania and USSR of 4 February 1948, p. 82(55) 1949, 1963, and 1974 Procès-Verbaux concluded between Romania and former USSR, p. 75(32), 77(37, 40), 79(44), 81(52), 83(61), 87(70), 88(72, 75, 76) 1949 General Procès-Verbal between Romania and former USSR of 27 September 1949, p. 79(44, 45, 46, 47), 80(48, 49, 50), 81(51, 52, 53), 82(54, 55), 83(58, 59), 84(62), 85(64, 65), 87(70), 88(76), 124(193) 1949 Procès-Verbal of the Description of the State Boundary dated 27 September 1949, p. 83(57), 86(68), 87(70), 88(76) 1958 Convention on the Continental Shelf, p. 87(70) 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, p. 106(134) 1969 Vienna Convention on the Law of Treaties of 23 May 1969, p. 78(42)



Maritime Delimitation in the Black Sea (Romania v. Ukraine)

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Sources of Law (cont.) 1974 General Procès-Verbal, p. 84(62)1961 Border Régime Treaty between Romania and the USSR, p. 79(44), 83(61) 1978 Agreement concerning the Delimitation of the Continental Shelf in the Black Sea, between Turkey and the USSR on 23 June 1978, p. 119(175) 1982 Law of the Sea Convention of 10 December 1982, p. 65(3), 76(35), 77(36, 37, 38, 39, 40), 78(41, 42), 86(69), 87(70, 71), 103(123, 124), 105(129), 106(132, 133), 107(134, 135, 136), 108(137), 112(155), 120(180), 121(183), 122(185, 187) 1986 Exchange of Notes of 23 December 1986, p. 119(175) 1987 Exchange of Notes of 6 February 1987, p. 119(175) 1997 Treaty on the Relations of Good Neighbourliness and Co-operation between Romania and Ukraine of 2 June 1997, p. 64(1), 70(18), 74(31), 75(32, 33), 76(34, 35) 1997 Additional Agreement constituted by an exchange of letters of 2 June 1997 between the Ministers for Foreign Affairs of Romania and Ukraine, p. 64(1), 66(11), 70(18), 71(20), 73(26), 73(27, 28, 29), 75(33), 76(34), 77(37), 78(41), 87(71), 123(190), 124(194) 1997 Agreement between Turkey and Bulgaria on the determination of the boundary in the mouth area of the Rezovska/Mutludere River and delimitation of the maritime areas between the two States in the Black Sea of 4 December 1997, p. 119(176) 2003 Treaty between Ukraine and Romania on the Regime of the Ukrainian-Romanian State Border, p. 67(12), 68(13), 71(21, 23), 75(25), 73(27, 28), 75(32), 79(44), 80(49, 50), 82(53), 84(63), 86(66), 88(75), 111(152), 128(205), 130(218), 131(219) Inter(national) legal references

1951 Act, p. 83(60) ILC Yearbook, 1956, Vol. II, p. 270, p. 107(134) Award of the Arbitral Tribunal in the Second Stage of the Proceedings between Eritrea and Yemen (Maritime Delimitation), 17 December 1999, RIAA, Vol. XXII, pp. 367–368, paras. 139–146, p. 109(149) Award of 11 April 2006, RIAA, Vol. XXVII, p. 214, para. 241 between Barbados and Trinidad and Tobago, p. 125(198) Anglo-French Continental Shelf Case, RIAA, Vol. XVIII, p. 58, para. 101), p. 129(210) Delimitation of the maritime boundary between Guinea and GuineaBissau, RIAA, Vol. XIX, pp. 183–184, paras. 94–95, p. 129(211)

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Representation of Parties Romania Agent, Counsel and Advocate

H.E. Mr. Bogdan Aurescu, Director General, Ministry of Foreign Affairs of Romania, Lecturer, Faculty of Law, University of Bucharest, President of the Romanian Branch of the International Law Association, member of the Permanent Court of Arbitration,

Co-agent, Counsel & Advocate

Mr. Cosmin Dinescu, Director General for Legal Affairs, Ministry of Foreign Affairs of Romania,

Co-Agent

H.E. Mr. Călin Fabian, Ambassador of Romania to the Kingdom of the Netherlands,

Senior Counsel and Advocates

Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international, Barrister, Mr. Vaughan Lowe, Q.C., Chichele Professor of International Law, University of Oxford, member of the English Bar, associate member of the Institut de droit international, Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and former Chairman of the International Law Commission, associate member of the Institut de droit international,

Counsel and Advocates

Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense, Mr. Simon Olleson, member of the English Bar,

Technical and Cartographic Experts

Mr. Gicu Boros¸i, Director General, National Agency for Mineral Resources, Mr. Mihai German, Deputy Director General, National Agency for Mineral Resources, member of the United Nations Commission on the Limits of the Continental Shelf, Mr. Eugen Laurian, Counter-Admiral (retired), Mr. Octavian Buzatu, Lieutenant Commander (retired), Mr. Ovidiu Neghiu, Captain, Ministry of Defence of Romania,

Advisors

Mr. Liviu Dumitru, Head of the Borders and Maritime Delimitation Unit, Ministry of Foreign Affairs of Romania, Ms. Irina Nită, Second Secretary, Legal Adviser, Embassy of Romania in the Kingdom of the Netherlands, Ms. Catrinel Brumar, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign Affairs of Romania,



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Romania (cont.) Ms. Mirela Pascaru, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign Affairs of Romania, Ms. Ioana Preda, Third Secretary, Borders and Maritime Delimitation Unit, Ministry of Foreign Affairs of Romania, Ms. Olivia Horvath, Desk Officer, Public Diplomacy Department, Ministry of Foreign Affairs of Romania,

Ukraine Agent

H.E. Mr. Volodymyr A. Vassylenko, Adviser to the Minister for Foreign Affairs of Ukraine, Ambassador Extraordinary and Plenipotentiary of Ukraine, Professor of International Law, National University of Kyiv Mohyla Academy,

Co-Agents

H.E. Mr. Oleksandr M. Kupchyshyn, Ambassador Extraordinary and Plenipotentiary of Ukraine, Deputy Foreign Minister of Ukraine, Mr. Volodymyr G. Krokhmal, Director of the Legal and Treaty Department of the Ministry of Foreign Affairs of Ukraine,

Counsel & Advocates

Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the New York Bar, Eversheds LLP, Paris, Mr. Jean-Pierre Quéneudec, Professor Emeritus of International Law, the University of Paris I (PanthéonSorbonne), Sir Michael Wood, K.C.M.G., member of the English Bar, member of the International Law Commission, Ms. Loretta Malintoppi, avocat à la Cour d’appel de Paris, member of the Rome Bar, Eversheds LLP, Paris, Associate Member of the Institute of International Law

Legal Advisers

H.E. Mr. Vasyl G. Korzachenko, Ambassador Extraordinary and Plenipotentiary of Ukraine to the Kingdom of the Netherlands, Mr. Nick Minogue, Solicitor of the Supreme Court of England and Wales, Mr. Oleksii V. Ivaschenko, Acting Head of International Law Division, Legal and Treaty Department of the Ministry of Foreign Affairs of Ukraine, Mr. Maxime O. Kononenko, First Secretary of the Embassy of Ukraine in the French Republic, Ms. Mariana O. Betsa, Second Secretary of the Embassy of Ukraine in the Kingdom of the Netherlands,

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Ukraine (cont.) Technical Advisers

Mr. Robin Cleverly, M.A., D. Phil, C. Geol., F.G.S., Law of the Sea Consultant, Admiralty Consultancy Services, Major General Borys D. Tregubov, Assistant to the Head of the State Border Protection Service of Ukraine

DISPUTES REGARDING NAVIGATIONAL AND RELATED RIGHTS (Costa Rica v. Nicaragua) General List No.: 133 Mean(s) and date of institution of the case: Application (29 September 2005) Statement of claim/question: Costa Rica requestedthe Court to adjudge and declare that, by its conduct, the Republic of Nicaragua has violated: (a) the obligation to allow all Costa Rican vessels and their passengers to navigate freely on the San Juan for purposes of commerce, including communication and the transportation of passengers and tourism; (b) the obligation not to impose any charges or fees on Costa Rican vessels and their passengers for navigating on the River; (c) the obligation not to require persons exercising the right of free navigation on the River to carry passports or obtain Nicaraguan visas; (d) the obligation not to require Costa Rican vessels and their passengers to stop at any Nicaraguan post along the River; (e) the obligation not to impose other impediments on the exercise of the right of free navigation, including timetables for navigation and conditions relating to flags; ( f ) the obligation to allow Costa Rican vessels and their passengers while engaged in such navigation to land on any part of the bank where navigation is common without paying any charges, unless expressly agreed by both Governments; (g) the obligation to allow Costa Rican official vessels the right to navigate the San Juan, including for the purposes of re-supply and exchange of personnel of the border posts along the right bank of the River with their official equipment, including service arms and ammunition, and for the purposes of protection as established in the relevant instruments, and in particular the Second article of the Cleveland Award; (h) the obligation to facilitate and expedite traffic on the San Juan, within the terms of the Treaty of 15 April 1858 and its interpretation by the Cleveland Award of 1888, in accordance with Article 1 of the bilateral Agreement of 9 January 1956;

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(i) the obligation to permit riparians of the Costa Rican bank to fish in the River for subsistence purposes. Further, the Court is requested to adjudge and declare that by reason of the above violations, Nicaragua is obliged: (a) immediately to cease all the breaches of obligations which have a continuing character; (b) to make reparation to Costa Rica for all injuries caused to Costa Rica by the breaches of Nicaragua’s obligations referred to above, in the form of the restoration of the situation prior to the Nicaraguan breaches and compensation in an amount to be determined in a separate phase of these proceedings; and (c) to give appropriate assurances and guarantees that it shall not repeat its unlawful conduct, in such form as the Court may order. The Court is requested to reject Nicaragua’s request for a declaration.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute, Art. (36) of the PCIJ Statute read in Art. 36(5) of the ICJ Statute, Tovar-Caldera Agreement between Costa Rica and Nicaragua of 26 September 2002 and Article XXXI of the American Treaty on Pacific Settlement (“Pact of Bogota”) Section A – Procedural and Organizational Aspects Duration and Public sittings Total

Duration (from – to)

Public sittings

29 September 2005 to 13 July 2009 (years / months / days)

Between 2 and 12 March 2009

Orders Date of Order and Authority

Content

29 November 2005 Court – President Shi

Fixing of time-limits: 29 August 2006 – Memorial of Costa Rica 29 May 2007 – Counter-Memorial of Nicaragua

9 October 2007 Court – President Higgins

Authorisation of submission of a Reply and Rejoinder 15 January 2008 – Reply of Costa Rica 15 July 2008 – Counter-Memorial of Nicaragua



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Section B – Merits Official citation: Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2000, p. 213 Date of judgment: 13 July 2009 Authoritative text: English Composition of the Court: President Owada; Judges Shi, Koroma, Al-khasawneh, BuergenthaL, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Guillaume; Registrar Couvreur. Headnotes: Geographical and historical context and origin of the dispute. The San Juan River – Border between Costa Rica and Nicaragua – History of Costa Rica and Nicaragua after independence – War on the filibusters – 1858 Treaty of Limits – 1888 Cleveland Award – Demarcation of the boundary – 1916 decision of the Central American Court of Justice – 1956 Fournier-Sevilla Agreement – Incidents relating to navigation on the San Juan – 1995 Cuadra-Castro Communiqué – Prohibition by Nicaragua of navigation of Costa Rican police vessels – 1998 Cuadra-Lizano Communiqué – 2002 Tovar-Caldera Agreement – Proceedings instituted before the Court by Costa Rica – No objections to the jurisdiction of the Court raised by Nicaragua. Costa Rica’s right of free navigation on the San Juan River. Legal basis of the right of free navigation – No need for the Court to decide whether the San Juan is an “international river” – The 1858 Treaty is sufficient to settle the question of the extent of Costa Rica’s right of free navigation – Costa Rica’s right of free navigation mainly based on Article VI of the 1858 Treaty – Relevance of the Cleveland Award, the 1916 decision of the Central American Court of Justice and the Fournier-Sevilla Agreement. Disagreement between the Parties as to the types of navigation covered by the 1858 Treaty – Interpretation of the expression “con objetos de comercio” in Article VI of the Treaty – Treaty provisions establishing limitations on sovereignty – General rules of interpretation applicable – No intention by authors of 1858 Treaty to establish any hierarchy as between Nicaragua’s sovereignty over the San Juan and Costa Rica’s right of free navigation – None of the points under examination in the case was settled by the Cleveland Award of 1888 or by the decision of the Central American Court of Justice of 1916. Meaning of the phrase “con objetos” – Necessity to be able to give the sentence coherent meaning – Additional arguments – Meaning of the word “objetos” in Article VIII of the 1858 Treaty – 1857 “Cañas-Martinez” Peace Treaty – English

528

Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

translations of the 1858 Treaty submitted by each Party to President Cleveland – The expression “con objetos de comercio” means “for the purposes of commerce”. Meaning of the word “commerce” – Evolving meaning of generic terms in a treaty – Present meaning of the notion of “commerce” must be accepted for purposes of applying the Treaty – The right of free navigation applies to the transport of persons as well as the transport of goods – Navigation by vessels used in the performance of governmental activities or to provide public services which are not commercial in nature cannot be regarded as falling within the “purposes of commerce” under Article VI. Types of navigation covered by the right of free navigation “for the purposes of commerce” pursuant to Article VI of the 1858 Treaty – Navigation of vessels belonging to Costa Rican riparians in order to meet the basic requirements of everyday life does not fall within the scope of Article VI of the Treaty – Navigation covered by other provisions of the Treaty – Population inhabiting the south bank of the San Juan Costa Rican commonly used the river for travel at the time of the conclusion of the Treaty – Presumption that the Parties intended to preserve the right of riparians to use the river to meet their essential requirements – Right to be inferred from the provisions of the Treaty as a whole. No special régime for “official vessels” established in Article VI of the 1858 Treaty – “Official vessels” navigating for the “purposes of commerce” – “Official vessels” used for public order activities – Question of revenue service vessels settled by the 1888 Cleveland Award – Navigation of official Costa Rican vessels used for public order activities and public services lies outside the scope of Article VI of the 1858 Treaty – Right of navigation of certain Costa Rican official vessels for the purpose of providing services to population is inferred from the provisions of the Treaty as a whole. Nicaragua’s power of regulation of navigation on the San Juan River. Characteristics of regulations – Environmental protection as a legitimate purpose of a regulation – Lack of any specific provision in the Treaty relating to notification of regulatory measures – Factors imposing an obligation of notification – 1956 Agreement – Particular situation of a river in which two States have rights – Notification implicit in the nature of regulation – Obligation of Nicaragua to notify Costa Rica of regulations – Costa Rica’s obligation to establish unreasonableness and allegedly disproportionate impact of regulations. Requirement to stop and identification – Right of Nicaragua to know the identity of persons entering and leaving its territory – Nicaraguan requirement that vessels stop on entering and leaving the San Juan is lawful – No legal justification for the requirement to stop at any intermediate point – Failure of Costa Rica to show that the regulation is unreasonable.



Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

529

Departure clearance certificates – Purposes invoked by Nicaragua are legitimate – Requirement for departure clearance certificates does not appear to have imposed any significant impediment to freedom of navigation – No suggestion from Costa Rica that it would be in a position to issue departure clearance certificates – No instance of navigation being impeded by an arbitrary refusal of a certificate. Visas and tourist cards – Distinction to be made between requiring visas and requiring tourist cards – The power of a State to issue or refuse visas entails discretion – Titleholder and beneficiaries of the right of free navigation – Nicaragua may not impose a visa requirement on persons who benefit from Costa Rica’s right of free navigation – Imposition of a visa requirement constitutes a breach of the Treaty right – Legal situation remains unaffected even if no impediment to the freedom of navigation resulting from visa requirement – Tourist cards are not intended to facilitate control over entry into the San Juan River – No legitimate purpose – Purchase of tourist cards is inconsistent with the freedom of navigation. Charges – No service provided by issuance of departure clearance certificates – Requirement to pay is unlawful. Timetabling – Prohibition of night time navigation – Measure is not impediment to the freedom of navigation – Purpose pursued is legitimate – Unreasonableness not established. Flags – Nicaragua may require certain Costa Rican vessels to fly its flag – No impediment to the exercise of the freedom of navigation – No evidence that Costa Rican vessels have been prevented from navigation on the San Juan River as a result of this requirement. Subsistence fishing by riparians of the Costa Rican bank. Question of admissibility raised by Nicaragua – The Court’s power of appreciation – The alleged interferences by Nicaragua with the claimed right of subsistence fishing post-date the filing of the Application – A sufficiently close connection exists between the claim relating to subsistence fishing and the Application – Nicaragua has not been disadvantaged by Costa Rica’s failure to give notice of the claim in the Application – Nor has the Court been disadvantaged in its understanding of the issues – Objection to admissibility cannot be upheld. Merits of the claim – Dispute solely concerns subsistence fishing – Practice long established – Failure of Nicaragua to deny existence of a right arising from such a practice – Costa Rica has a customary right – Nicaragua may take regulatory measures adopted for proper purposes – Customary right does not extend to fishing from vessels on the river.

530

Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

Claims made by the Parties in their final submissions. The claims of Costa Rica upheld or dismissed in the operative part of the Judgment – A finding of wrongfulness regarding the conduct of a State entails an obligation to cease that conduct – Cessation of a violation of a continuing character and the consequent restoration of the legal situation constitute a form of reparation – No evidence that Costa Rica has suffered a financially assessable injury – Assurances and guarantees of non-repetition ordered only if the circumstances so warrant – No reason to suppose that a State will repeat act or conduct declared wrongful. Nicaragua’s claim to be upheld to the extent that it corresponds to the reasoning in respect of Costa Rica’s claims – Nicaragua’s request for a declaration as to certain rights and obligations of the Parties not upheld. Text of the operative paragraph(s) (p. 269, para. 156) THE COURT, (1) As regards Costa Rica’s navigational rights on the San Juan River under the 1858 Treaty, in that part where navigation is common, (a) Unanimously, Finds that Costa Rica has the right of free navigation on the San Juan River for purposes of commerce; (b) Unanimously, Finds that the right of navigation for purposes of commerce enjoyed by Costa Rica includes the transport of passengers; (c) Unanimously, Finds that the right of navigation for purposes of commerce enjoyed by Costa Rica includes the transport of tourists; (d) By nine votes to five, Finds that persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation are not required to obtain Nicaraguan visas; IN FAVOUR: President Owada; Judges Shi, Buergenthal, Abraham, Keith, Bennouna, Cançado Trindade, Yusuf, Greenwood AGAINST: Judges Koroma, Al-Khasawneh, Sepúlveda-Amor, Skotnikov; Judge ad hoc Guillaume



Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

531

(e) Unanimously, Finds that persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation are not required to purchase Nicaraguan tourist cards; ( f ) By thirteen votes to one, Finds that the inhabitants of the Costa Rican bank of the San Juan River have the right to navigate on the river between the riparian communities for the purposes of the essential needs of everyday life which require expeditious transportation; IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Buergenthal, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood AGAINST: Judge ad hoc Guillaume (g) By twelve votes to two, Finds that Costa Rica has the right of navigation on the San Juan River with official vessels used solely, in specific situations, to provide essential services for the inhabitants of the riparian areas where expeditious transportation is a condition for meeting the inhabitants’ requirements; IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Buergenthal, Abraham, Keith, Sepúlveda-Amor, Bennouna, Cançado Trindade, Yusuf, Greenwood AGAINST: Judge Skotnikov; Judge ad hoc Guillaume (h) Unanimously, Finds that Costa Rica does not have the right of navigation on the San Juan River with vessels carrying out police functions; (i) Unanimously, Finds that Costa Rica does not have the right of navigation on the San Juan River for the purposes of the exchange of personnel of the police border posts along the right bank of the river and of the re-supply of these posts, with official equipment, including service arms and ammunition; (2) As regards Nicaragua’s right to regulate navigation on the San Juan River, in that part where navigation is common, (a) Unanimously, Finds that Nicaragua has the right to require Costa Rican vessels and their passengers to stop at the first and last Nicaraguan post on their route along the San Juan River;

532

Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

(b) Unanimously, Finds that Nicaragua has the right to require persons travelling on the San Juan River to carry a passport or an identity document; (c) Unanimously, Finds that Nicaragua has the right to issue departure clearance certificates to Costa Rican vessels exercising Costa Rica’s right of free navigation but does not have the right to request the payment of a charge for the issuance of such certificates; (d) Unanimously, Finds that Nicaragua has the right to impose timetables for navigation on vessels navigating on the San Juan River; (e) Unanimously, Finds that Nicaragua has the right to require Costa Rican vessels fitted with masts or turrets to display the Nicaraguan flag; (3) As regards subsistence fishing, By thirteen votes to one, Finds that fishing by the inhabitants of the Costa Rican bank of the San Juan River for subsistence purposes from that bank is to be respected by Nicaragua as a customary right; IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Buergenthal, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Guillaume AGAINST: Judge Sepúlveda-Amor (4) As regards Nicaragua’s compliance with its international obligations under the 1858 Treaty, (a) By nine votes to five, Finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty when it requires persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation to obtain Nicaraguan visas; IN FAVOUR: President Owada; Judges Shi, Buergenthal, Abraham, Keith, Bennouna, Cançado Trindade, Yusuf, Greenwood AGAINST: Judges Koroma, Al-Khasawneh, Sepúlveda-Amor, Skotnikov; Judge ad hoc Guillaume



Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

533

(b) Unanimously, Finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty when it requires persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation to purchase Nicaraguan tourist cards; (c) Unanimously, Finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty when it requires the operators of vessels exercising Costa Rica’s right of free navigation to pay charges for departure clearance certificates; (5) Unanimously, Rejects all other submissions presented by Costa Rica and Nicaragua. Declarations/Opinions Separate Opinion Declaration

Judges Sepúlveda-Amor and Skotnikov Judge ad hoc Guillaume

Sources of Law PCIJ Statute

Art. 36, p. 219(1)

ICJ Statute

Art. 31(3), p. 219(4) Art. 34(3), p. 219(3) Art. 36(2), p. 219(1) Art. 36(5), p. 219(1) Art. 40(2), p. 219(2) Art. 40(3), p. 219(3) Art. 59, p. 267(148) Art. 63(1), p. 219(3)

ICJ Rules of Court

Art. 43, p. 219(3) Art. 53(1), p. 220(6) Art. 53(2), p. 220(9) Art. 56, p. 220(8) Art. 56(1), p. 220(8) Art. 56(2), p. 220(8) Art. 56(3), p. 220(8) Art. 61(4), p. 221(11) Art. 72, p. 221(11) Art. 69(3), p. 219(3) Art. 80, p. 269(155)

534

Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

Sources of Law (cont.) PCIJ case-law

Rights of Nationals of the United States of America in Morocco (France v. United States of America) [I.C.J. Reports 1952, p. 176], p. 242(63) Chorzów Factory, [Judgment No. 8, 1927, P.C.I.J., Series A, No. 17, p. 63], p. 267(150)

ICJ case-law

Current Order of 29 November 2005, p. 220(5) Order of 9 October 2007, p. 220(7) Previous Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment [I.C.J. Reports 12007(I), p. 109–110(160)], p. 237(47) Territorial Dispute (Libya/Chad), Judgment [I.C.J. Reports 1994, p. 21–22(41)], p. 237(47) Kasikili/Sedudu Island (Botswana/Namibia), [I.C.J. Reports 1999 (II), p. 1062(25)], p. 242(63) Aegean Sea Continental Shelf, [I.C.J. Reports 1978, p.3], p. 243(65) Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Judgment, [I.C.J. Reports 2007(II), p. 861(89)], p. 243(68) Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, [I.C.J. Reports 2009, p. 86], p. 253(101) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240], p. 264(137) Temple of Preah Vihear, Merits, Judgment, [I.C.J. Reports 1962, p. 36), p. 264(137) Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, [I.C.J. Reports 1974, p. 203(72)], p. 264(137) Nuclear Tests (Australia v. France; New Zealand v. France), [I.C.J. Reports 1974], p. 17(63)], p. 267(150) Nuclear Tests (New Zealand v. France), [I.C.J. Reports 1974, p. 477(63)], p. 267(150) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 1984, p. 437(101)], p. 267(150)



Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

535

Sources of Law (cont.) Treaties

American Treaty on Pacific Settlement (Pact of Bogota), p. 219(1) 2002 Tovar-Caldera Agreement between Costa Rica and Nicaragua of 26 September 2002, p. 219(1), 231(27) 1888 Treaty between Costa Rica and Nicaragua of 22 March 1888, p. 221(12) 1956 Agreement between Costa Rica and Nicaragua of 9 January 1956 (Fournier-Sevilla Agreement), p. 222(12, 13), 234(39, 40), 291(94) 1857 Treaty of Limits, p. 229(19) 1857 Peace Treaty of 8 December 1857 (Cañas-Martinez Peace Treaty), p. 239(55) 1858 Treaty of Limits of 15 April 1858 (the Jerez-Cañas Treaty), p. 224(13), 226(14), 229(19, 20), 230(22), 232(30, 32), 233(33, 36, 37), 234(38, 39), 235(41, 42, 43), 238(50), 239(54, 55), 240(56, 58), 244(67), 245(73, 74, 75), 246(76, 77, 78, 79), 247(80), 248(84, 85), 249(86), 250(89, 91), 251(94), 257(114), 259(120), 263(132, 133, 135), 264(137), 265(140), 269(156) 1914 Treaty between Nicaragua and USA (Chamorro-Bryan Treaty) of 5 August 1914, p. 230(22) 1956 Agreement between Costa Rica and Nicaragua (the Fournier-Sevilla Agreement) 9 January 1956, p. 230(23) 1969 Vienna Convention on Law of Treaties, p. 237(47), 242(63) 1971 Ramsar Convention on Wetlands, p. 250(88) 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, p. 250(88) 1992 Convention on Biodiversity Conservation and Protection of Priority Wild Areas in Central America, p. 250(88) 1995 Communiquè between the Commander-in-Chief of the Nicaraguan Army and the Costa Rican Minister of Public Security Cuadra-Castro Joint Communiqué September 1995, p. 230(25), 234(40) 1998 Communiquè between the Nicaraguan Minister of Defence and the Costa Rican Minister of Public Security (CuadraLizano Joint Communiqué) of 30 July 1998, p. 231(26), 234(40), 248(83)

Inter(national) references

1540 Royal Ordinance, p. 265(140) 1888 Cleveland Award of 1888 of 22 March 1888, p. 223(13), 230(20), 230(22), 234(39), 235(41), 238(49), 247(83), 252(94), 260(121)

536

Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

Sources of Law (cont.) 1825 Decree of the Federal Congress of Central America of 9 December 1825, p. 229(17) 1916 Decision of the Central American Court of Justice of 30 September 1916, p. 235(41), 238(49) 1928 Act, p. 244(65)

Representation of Parties Costa Rica Agents

H.E. Mr. Edgar Ugalde-Alvarez, Ambassador, Vice-Minister of Foreign Affairs of Costa Rica,

Counsel and Advocates

Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international, Mr. Lucius Caflisch, Emeritus Professor of International Law, Graduate Institute of International and Development Studies, Geneva, member of the International Law Commission, member of the Institut de droit international, Mr. Marcelo G. Kohen, Professor of International Law, Graduate Institute of International and Development Studies, associate member of the Institut de droit international, Mr. Sergio Ugalde, Senior Adviser to the Ministry of Foreign Affairs of Costa Rica, member of the Permanent Court of Arbitration, Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs of Costa Rica, Ms. Kate Parlett, Special Adviser to the Ministry of Foreign Affairs of Costa Rica, Solicitor (Australia), PhD candidate, University of Cambridge (Jesus College),

Advisers

H.E. Mr. Francisco José Aguilar-de Beauvilliers Urbina, Ambassador of Costa Rica to the Kingdom of the Netherlands, Mr. Ricardo Otarola, Chief of Staff to the Vice-Minister of Foreign Affairs of Costa Rica, Mr. Sergio Vinocour, Minister and Consul General of Costa Rica in the French Republic, Mr. Norman Lizano, Consul General of Costa Rica in the Kingdom of the Netherlands, Mr. Carlos Garbanzo, Counsellor at the Permanent Mission of Costa Rica to the United Nations Office at Geneva,



Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

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Costa Rica (cont.) Mr. Fouad Zarbiev, PhD candidate, Graduate Institute of International and Development Studies, Geneva, Mr. Leonardo Salazar, National Geographic Institute of Costa Rica, Assistant Adviser

Mr. Allan Solis, Third Secretary at the Embassy of Costa Rica in the Kingdom of the Netherlands,

Nicaragua Agent and Counsel

H.E. Mr. Carlos José Argüello Gómez, Ambassador of Nicaragua to the Kingdom of the Netherlands,

Counsel & Advocates Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., member of the English Bar, former Chairman of the International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, member of the Institut de Droit international, Distinguished Fellow, All Souls College, Oxford, Mr. Stephen C. McCaffrey, Professor of International Law at the University of the Pacific, McGeorge School of Law, Sacramento, United States of America, former member of the International Law Commission, Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and former Chairman of the International Law Commission, associate member of the Institut de droit international, Mr. Paul Reichler, Attorney at Law, Foley Hoag LLP, Washington D.C., member of the Bar of the United States Supreme Court, member of the Bar of the District of Columbia, Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid, associate member of the Institut de droit international, Assistant Counsel

Ms. Irene Blázquez Navarro, Doctor of Public International Law, Universidad Autónoma, Madrid, Ms. Clara E. Brillenbourg, Foley Hoag LLP, member of the Bars of the District of Columbia and New York, Mr. Lawrence H. Martin, Attorney at Law, Foley Hoag LLP, Washington D.C., member of the Bar of the United States Supreme Court, member of the Massachusetts Bar, member of the Bar of the District of Columbia, Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs of Nicaragua,

538

Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)

Nicaragua (cont.) Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense, Ms. Tania Elena Pacheco Blandino, Counsellor, Embassy of Nicaragua in the Kingdom of the Netherlands, Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affairs of Nicaragua, Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of Foreign Affairs of Nicaragua

CASE CONCERNING THE STATUS VIS-À-VIS THE HOST STATE OF A DIPLOMATIC ENVOY TO THE UNITED NATIONS (Commonwealth of Dominica v. Switzerland) General List No.: 134 Mean(s) and date of institution of the case: Application (26 April 2006) Statement of claim/question: the Commonwealth of Dominica requests the Court to (a) clarify the rights and duties of a host State, of a sending State and those of the United Nations, the Specialized Agencies and the WTO, with regard to Permanent Missions and their diplomatic personnel;and further to adjudge and declare as follows: (b) that the Respondents have breached, and are continuing to breach, their legal obligations toward the Commonwealth of Dominica under Articles 23–47 of the Vienna Convention on Diplomatic Relations of 18 April 1961, the Headquarters Agreement between the Respondents and the United Nations of 11 June and 1 July 1946, the Agreement on Privileges and Immunities between the Respondents and the United Nations of 11 April 1946, the multilateral Convention on Privileges and Immunities of the United Nations of 13 February 1946 and under general international law; (c) that the Respondents, in breach of their obligations under the aforementioned treaties and conventions as well as under general and customary international law, have violated the fundamental rules of immunity of diplomats; (d) that the Respondents, in breach of their obligations under the aforementioned treaties and conventions as well as under general and customary international law, in the event also failed to recognize the rights under international law concerning active legation of the Applicants and on passive legation of international organizations; (e) that the Respondents, in breach of their obligations under the aforementioned treaties and conventions as well as under general and customary international law, have violated rules concerning their rights and duties as a host State;

540

The Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland)

( f ) that the Respondents have violated and continue to violate relevant sections on sovereignty and equality of the Declaration on Principles of International Law Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of 24 October 1970, sections which also reflect binding general international law. (g) that the Respondents have violated, and continue to violate, their solemn obligations under Articles I(3), 55 and 56 of the United Nations Charter; (h) that the Respondents, in breach of their obligations under general and customary international law, have violated and are violating the sovereignty of the Applicants, the Government of the Commonwealth of Dominica, and the rights of its diplomatic Envoy; (i) that the Respondents, in breach of their obligations under general and customary international law, and under Article 2(7) of the Charter of the United Nations, have intervened and are intervening in the internal affairs of the Applicants, the Commonwealth of Dominica; ( j) that the Respondents and their agents and surrogates are under an obligation to cease and desist immediately from their breaches of the foregoing legal obligations; (k) that the Respondents have an obligation to pay the Applicants, the Commonwealth of Dominica, in their own right and as parens patriae for their citizens, reparations for damages to the trade and economy of the Applicants, the Commonwealth of Dominica, caused by the foregoing violations of international law in a sum to be determined by the Court. The Applicants reserve the right to introduce to the Court a precise evaluation of the damages caused by the Respondents. Basis of jurisdiction invoked by the Applicant(s): Membership of the UN and ICJ Statute, Vienna Convention on Diplomatic Relations, Optional Protocol to the Vienna Convention for the Compulsory Settlement of Disputes of 1961. Section A – Procedural and Organizational Aspects Duration and Public sittings Total

Duration (from – to)

Public sittings

26 April to 9 June 2006

1 month/14 days



The Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland)

Order Date of Order and Authority 9 June 2006 Court – President Higgins

Content Removal of the case from the List.

541

PULP MILLS ON THE RIVER URUGUAY (Argentina v. Uruguay) General List No.: 135 Mean(s) and date of institution of the case: Application (4 May 2006) Statement of claim/question: The Argentine Republic requests the International Court of Justice: “1. to find that by authorizing – the construction of the ENCE mill; – the construction and commissioning of the Botnia mill and its associated facilities on the left bank of the River Uruguay, the Eastern Republic of Uruguay has violated the obligations incumbent on it under the Statute of the River Uruguay of 26 February 1975 and has engaged its international responsibility; 2. to adjudge and declare that, as a result, the Eastern Republic of Uruguay must: (i) resume strict compliance with its obligations under the Statute of the River Uruguay of 1975; (ii) cease immediately the internationally wrongful acts by which it has engaged its responsibility; (iii) re-establish on the ground and in legal terms the situation that existed before these internationally wrongful acts were committed; (iv) pay compensation to the Argentine Republic for the damage caused by these internationally wrongful acts that would not be remedied by that situation being restored, of an amount to be determined by the Court at a subsequent stage of these proceedings; (v) provide adequate guarantees that it will refrain in future from preventing the Statute of the River Uruguay of 1975 from being applied, in particular the consultation procedure established by Chapter II of that Treaty.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute and Article 60 of the Statute of the River Uruguay (signed on 26 February 1975 and entered into force on 18 September 1976) (referred as the “1975 Statute”).

Pulp Mills on the River Uruguay (Argentina v. Uruguay)



543

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

4 May 2006 to 20 April 2010 (3 years / 11 months / 16 days)

Provisional Measures

4 May 2006 to 13 July 2006 (2 months / 9 days)

8–9 June 2006

Provisional Measures

4 May 2006 to 23 January 2007 (8 months / 19 days)

18–19 December 2006

Merits

24 January 2007 to 20 April 2010 (3 years / 2 months / 27 days)

14 September to 2 October 2009

Orders Date of Order and Authority

Content

13 July 2006 Court – President Higgins

Please see Section B

13 July 2006 Court – President Higgins

Fixing of time-limits: 15 January 2007 – Memorial of Argentina 20 July 2007 – Counter-Memorial of Uruguay

23 January 2007 Court – President Higgins

Please see Section C

14 September 2007 Court – President Higgins

Authorisation of Reply by Argentina and a Rejoinder by Uruguay and fixing of time-limits: 29 January 2008 – Reply of Argentina 29 July 2008 – Reply of Uruguay

Section B – Provisional Measures Official citation: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 113 Date of order: 13 July 2006 Authoritative text: English Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov; Judges ad hoc Torres Bernardez, Vinuesa; Registrar Couvreur.

544

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

Text of the operative paragraph(s) (p. 134, para. 87) THE COURT By fourteen votes to one, Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov; Judgead hoc, Torres Bernardez AGAINST: Judge ad hoc Vinuesa Declarations/Opinions Declaration

Judge Ranjeva

Separate Opinion

Judges Abraham and Bennouna

Dissenting Opinion

Judge ad hoc Vinuesa

Sources of Law ICJ Statute

Art. 31(3), p. 119(27) Art. 36(1), p. 114(3) Art. 40(2), p. 118(21) Art. 41, p. 113, 116(12), 123(43), 129(60) Art. 48, p. 113 Art. 60, p. 123(42)

ICJ Rules of Court

Art. 38(4), p. 118(21) Art. 73, p. 113, 116(12) Art. 73(2), p. 118(21) Art. 74, p. 113 Art. 74(3), p. 118(22), 119(27) Art. 75(3), p. 125(46), 134(86)

ICJ case-law

Other cases Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), [I.C.J. Reports 1973, p. 18], p. 121(35) Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, [I.C.J. Reports 2002, p. 241(58)], p. 129(57) Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, [I.C.J. Reports 1991, p. 17(23)], p. 129(62), 133(78)



Pulp Mills on the River Uruguay (Argentina v. Uruguay)

545

Sources of Law (cont.) Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, [I.C.J. Reports 2003, p. 107(22)], p. 129(62) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996, p. 234(13)], p. 132(72) Gabčikovo-Nagymaros Project (Hungary/Slovakia), [Judgment, I.C.J. Reports 1997, p. 78(140)], p. 132(72) Treaties

1975 Statute of the River Uruguay (signed on 26 February 1975 and entered into force on 18 September 1976), p. 113(1), 114(3, 4, 6), 116(11, 13, 14), 118(20), 120(31, 32, 33, 34), 122(36, 38), 123(40, 41, 42, 43), 125(47), 126(49, 50), 128(54, 56), 129(58, 59, 63), 130(64, 65, 66, 67), 131(68, 70, 71), 133(81), 134(82) 1961 Montevideo Treaty between Argentina and Uruguay defining the boundary on the River Uruguay, p. 114(2), 114(3), 133(81) 1961 Vienna Convention on Law of Treaties, p. 127(53) 2004 Verbal agreement between Argentina and Uruguay Foreign Ministers of 2 March 2004, p. 127(53)

Representation of Parties Uruguay Agent

H.E. Mr. Héctor Gros, Espiell, Agent Mr. Alan Boyle Mr. Luigi Condorelli Mr. Paul Reichler

Argentina Agent

H.E. Ms. Susana Myrta Ruiz Cerutti, Agent Ms. Romina Picolotti Mr. Philippe Sands Mr. Marcelo Kohen Ms. Laurence Boisson de Chazournes Mr. Alain Pellet H.E. Mr. Raúl Estrada Oyuela

546

Pulp Mills on the River Uruguay (Argentina v. Uruguay) Section C – Second Provisional Measures

Official citation: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 3 Date of order: 23 January 2007 Authoritative text: French Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov; Judges ad hoc Torres Bernardez, Vinuesa; Registrar Couvreur. Text of the operative paragraph(s) (p. 17, para. 56) THE COURT By fourteen votes to one, Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc, Vinuesa AGAINST: Judge ad hoc Torres Bernardez Declarations/Opinions Declaration

Judges Koroma and Buergenthal

Judge ad hoc

Torres Bernardez

Sources of Law ICJ Statute

Art. 36(1), p. 4(2) Art. 41, p. 3, (6), 4(4), 5(5, 6), 10(28), 11(31), 17(56) Art. 48, p. 3

ICJ Rules of Court Art. 73, p. 3, 4(4), 5(6) Art. 73(2), p. 7(15) Art. 74, p. 3 Art. 74(3), p. 7(16), 8(19) Art. 75(3), p. 17(55)



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Sources of Law (cont.) ICJ case-law

Current case Order of 13 July 2006, p. 5(5), 6–7(12), 10(24, 26), 14–15(46), 15(47), 16(53), Previous cases Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, [I.C.J. Reports 2002, p. 241(58)], p. 10(24) Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, [I.C.J. Reports 1991, p. 17(23)], p. 11(32) Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, [I.C.J. Reports 2003, p. 107(22)], p. 11(32) United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979 [I.C.J. Reports 1979, p. 21(47(B))], p. 16(49) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia) (Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 24(52(B))], p. 16(49) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [I.C.J. Reports 1996, p. 24(49(1))], p. 16(49) Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 3 July 2000, [I.C.J. Reports 2000, p. 129(47(1)], p. 16(49)

Treaties

1975 Statute of the River Uruguay (signed on 26 February 1975 and entered into force on 18 September 1976), p. 3(1), 4(2, 3, 4), 6(11, 12), 8(20, 21), 9(22, 23), 10(26, 27), 10–11(29), 11(30), 13(41), 14–15(46), 15(47), 16(53) Treaty of Asunción, p. 8–9(21, 22)

Inter(national) legal references

Decision of the ad hoc Tribunal of 6 September 2006, p. 9(23)

Representation of Parties Uruguay Agent

H.E. Mr. Héctor Gros, Espiell Mr. Alan Boyle Mr. Luigi Condorelli

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Argentina Agent

H.E. Ms. Susana Myrta Ruiz Cerutti Mr. Marcelo Kohen Mr. Alain Pellet

Section D – Merits Official citation: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, I.C.J. Reports 2010, p. 3 Date of Judgment: 20 April 2010 Authoritative text: French Composition of the Court: Vice-President Tomka, Acting President; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judges ad hoc Torres Bernárdez, Vinuesa; Registrar Couvreur. Headnotes: Legal framework and facts of the case. 1961 Treaty of Montevideo – 1975 Statute of the River Uruguay – Establishment of the Administrative Commission of the River Uruguay (CARU) – CMB (ENCE) pulp mill project – Orion (Botnia) pulp mill project – Port terminal at Nueva Palmira – Subject of the dispute. Scope of the Court’s jurisdiction. Compromissory clause (Article 60 of the 1975 Statute) – Provisions of the 1975 Statute and jurisdiction ratione materiae – Lack of jurisdiction for the Court to consider allegations concerning noise and visual pollution or bad odours (Article 36 of the 1975 Statute) – Air pollution and impact on the quality of the waters of the river addressed under substantive obligations. Article 1 of the 1975 Statute – Definition of the purpose of the 1975 Statute – Joint machinery necessary for the optimum and rational utilization of the river – Significance of the reference to the “rights and obligations arising from treaties and other international agreements in force for each of the parties” – Original Spanish text – Statute adopted by the parties in observance of their respective international commitments. Article 41(a) of the 1975 Statute – Original Spanish text – Absence of a “referral clause” having the effect of incorporating within the ambit of the Statute the obligations of the parties under international agreements and other norms envisaged in the Statute – Obligation for the parties to exercise their regulatory



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powers, in conformity with applicable international agreements, for the protection and preservation of the aquatic environment of the River Uruguay – Rules for interpreting the 1975 Statute – Article 31 of the Vienna Convention on the Law of Treaties – Distinction between taking account of other international rules in the interpretation of the 1975 Statute and the scope of the jurisdiction of the Court under Article 60 of the latter. Alleged breach of procedural obligations. Question of links between the procedural obligations and the substantive obligations – Object and purpose of the 1975 Statute – Optimum and rational utilization of the River Uruguay – Sustainable development – Co-operation between the parties in jointly managing the risks of damage to the environment – Existence of a functional link, in regard to prevention, between the procedural obligations and the substantive obligations – Responsibility in the event of breaches of either category. Interrelation of the various procedural obligations laid down by Articles 7 to 12 of the 1975 Statute – Original Spanish text of Article 7 – Obligation to inform, notify and negotiate as an appropriate means of achieving the objective of optimum and rational utilization of the river as a shared resource – Legal personality of CARU – Central role of CARU in the joint management of the river and obligation of the parties to co-operate. Obligation to inform CARU (Article 7, first paragraph, of the 1975 Statute) – Works subject to this obligation – Link between the obligation to inform CARU, co-operation between the parties and the obligation of prevention – Determination by CARU on a preliminary basis of whether there is a risk of significant damage to the other party – Content of the information to be transmitted to CARU – Obligation to inform CARU before issuing of the initial environmental authorization – Provision of information to CARU by private operators cannot substitute for the obligation to inform laid down by the 1975 Statute – Breach by Uruguay of the obligation to inform CARU. Obligation to notify the plans to the other party (Article 7, second and third paragraphs, of the 1975 Statute) – Need for a full environmental impact assessment (EIA) – Notification of the EIA to the other party, through CARU, before any decision on the environmental viability of the plan – Breach by Uruguay of the obligation to notify the plans to Argentina. Question of whether the Parties agreed to derogate from the procedural obligations – “Understanding” of 2 March 2004 – Content and scope – Since Uruguay did not comply with it, the “understanding” cannot be regarded as having had the effect of exempting Uruguay from compliance with the procedural obligations – Agreement setting up the High-Level Technical Group (GTAN) – Referral to the Court on the basis of Article 12 or Article 60 of the 1975 Statute: no practical distinction – The agreement to set up the GTAN had the aim of enabling the

550

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negotiations provided for in Article 12 of the 1975 Statute to take place, but did not derogate from other procedural obligations – In accepting the creation of the GTAN, Argentina did not give up the procedural rights belonging to it by virtue of the Statute, nor the possibility of invoking Uruguay’s responsibility; nor did Argentina consent to suspending the operation of the procedural provisions of the Statute (Article 57 of the Vienna Convention on the Law of Treaties) – Obligation to negotiate in good faith – “No construction obligation” during the negotiationperiod – Preliminary work approved by Uruguay – Breach by Uruguay of the obligation to negotiate laid down by Article 12 of the 1975 Statute. Obligations of Uruguay following the end of the negotiation period – Scope of Article 12 of the 1975 Statute – Absence of a “no construction obligation” following the end of the negotiation period and during the judicial settlement phase. Alleged breaches of substantive obligations. Burden of proof – Precautionary approach without reversal of the burden of proof – Expert evidence – Reports commissioned by the Parties – Independence of experts – Consideration of the facts by the Court – Experts appearing as counsel at the hearings – Question of witnesses, experts and expert witnesses. Optimum and rational utilization of the River Uruguay – Article 1 of the 1975 Statute sets out the purpose of the instrument and does not lay down specific rights and obligations – Obligation to comply with the obligations prescribed by the Statute for the protection of the environment and the joint management of the river – Regulatory function of CARU – Interconnectedness between equitable and reasonable utilization of the river as a shared resource and the balance between economic development and environmental protection that is the essence of sustainable development (Article 27 of the 1975 Statute). Obligation to ensure that the management of the soil and woodland does not impair the régime of the river or the quality of its waters (Article 35 of the 1975 Statute) – Contentions of Argentina not established. Obligation to co-ordinate measures to avoid changes to the ecological balance (Article 36 of the 1975 Statute) – Requirement of individual action by each party and co-ordination through CARU – Obligation of due diligence – Argentina has not convincingly demonstrated that Uruguay has refused to engage in the coordination envisaged by Article 36 of the 1975 Statute. Obligation to prevent pollution and preserve the aquatic environment – Normative content of Article 41 of the 1975 Statute – Obligation for each party to adopt rules and measures to protect and preserve the aquatic environment and, in particular, to prevent pollution – The rules and measures prescribed by each party must be in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies – Due diligence obligation to prescribe rules and mea-



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sures and to apply them – Definition of pollution given in Article 40 of the 1975 Statute – Regulatory action of CARU (Article 56 of the 1975 Statute), complementing that of each party – CARU Digest – Rules by which the existence of any harmful effects is to be determined: 1975 Statute, CARU Digest, domestic law of each party within the limits prescribed by the 1975 Statute. Environmental impact assessment (EIA) – Obligation to conduct an EIA – Scope and content of the EIA – Referral to domestic law – Question of the choice of mill site as part of the EIA – The Court is not convinced by Argentina’s argument that an assessment of possible sites was not carried out – Receiving capacity of the river at Fray Bentos and reverse flows – The CARU water quality standards take account of the geomorphological and hydrological characteristics of the river and the receiving capacity of its waters – Question of consultation of the affected populations as part of the EIA – No legal obligation to consult the affected populations arises from the instruments invoked by Argentina – Consultation by Uruguay of the affected populations did indeed take place. Production technology used in the Orion (Botnia) mill – No evidence to support Argentina’s claim that the Orion (Botnia) mill is not BAT-compliant in terms of the discharges of effluent foreach tonne of pulp produced – From the data collected after the start-up of the Orion (Botnia) mill, it does not appear that the discharges from it have exceeded the prescribed limits. Impact of the discharges on the quality of the waters of the river – Postoperational monitoring – Dissolved oxygen – Phosphorus – Algal blooms – Phenolic substances – Presence of nonylphenols in the river environment – Dioxins and furans – Alleged breaches not established. Effects on biodiversity – Insufficient evidence to conclude that Uruguay breached the obligation to protect the aquatic environment, including its fauna and flora. Air pollution – Indirect pollution from deposits into the aquatic environment – Insufficient evidence. On the basis of the evidence submitted, no breach by Uruguay of Article 41 of the 1975 Statute. Continuing obligations: monitoring – Obligation of the Parties to enable CARU to exercise on a continuous basis the powers conferred on it by the 1975 Statute – Obligation of Uruguay to continue monitoring the operation of the Orion (Botnia) plant – Obligation of the Parties to continue their co-operation through CARU. Claims made by the Parties in their final submissions. Claims of Argentina – Breach of procedural obligations – Finding of wrongful conduct and satisfaction – Forms of reparation other than compensation not excluded by the 1975 Statute – Restitution as a form of reparation for injury – Definition – Limits – Form of reparation appropriate to the injury suffered,

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Pulp Mills on the River Uruguay (Argentina v. Uruguay)

taking into account the nature of the wrongful act – Restitution in the form of the dismantling of the Orion (Botnia) mill not appropriate where only breaches of procedural obligations have occurred – No breach of substantive obligations and rejection of Argentina’s other claims – No special circumstances requiring the ordering of assurances and guarantees of non-repetition. Uruguay’s request for confirmation of its right to continue operating the Orion (Botnia) plant – No practical significance. Obligation of the Parties to co-operate with each other, on the terms set out in the 1975 Statute, to ensure the achievement of its object and purpose – Joint action of the Parties through CARU and establishment of a real community of interests and rights in the management of the River Uruguay and in the protection of its environment. Text of the operative paragraph(s) (p. 79, para. 280) THE COURT (1) By thirteen votes to one, Finds that the Eastern Republic of Uruguay has breached its procedural obligations under Articles 7 to 12 of the 1975 Statute of the River Uruguay and that the declaration by the Court of this breach constitutes appropriate satisfaction; IN FAVOUR: Vice-President Tomka, Acting President; Judges Koroma, Al-Khasawneh, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Vinuesa AGAINST: Judge ad hoc Torres Bernárdez (2) By eleven votes to three, Finds that the Eastern Republic of Uruguay has not breached its substantive obligations under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay; IN FAVOUR: Vice-President Tomka, Acting President; Judges Koroma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judge ad hoc Torres Bernárdez AGAINST: Judges Al-Khasawneh, Simma; Judge ad hoc Vinuesa (3) Unanimously, Rejects all other submissions by the Parties.



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Declarations/Opinions Joint Dissenting Opinion

Judges Al-Khasawneh and Simma

Separate Opinion

Judge Keith

Declaration

Judge Skotnikov

Separate Opinion

Judge Cançado Trindade

Declaration

Judge Yusuf

Separate Opinion

Judge Greenwood

Separate Opinion

Judge ad hoc Torres Bernárdez

Dissenting Opinion

Judge ad hoc Vinuesa

Sources of Law ICJ Statute

Art. 31(3), para. 7 Art. 36(1), para. 1, 48 Art. 40(2), para. 2 Art. 40(3), para. 2 Art. 41, para. 10

ICJ Rules of Court

Art. 53(2), para. 17 Art. 56, para. 15 Art. 56(2), para. 19 Art. 56(4), para. 18, 19 Art. 57, para. 167 Art. 61(4), para. 21 Art. 64, para. 167 Art. 72, para. 21 Art. 73, para. 3, 10 Art. 73(2), para. 3 Art. 80, para. 279

UN PCIJ case-law

Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931, (P.C.I.J., Series A/B, No. 42, p. 116), para. 150 Chorzów Factory, Merits, [Judgment No. 13, 1927, P.C.I.J., Series A, No. 17, p. 63], para. 278

Treaties

1975 Treaty between Uruguay and Argentina of 26 February 1975 (Statue of the River Uruguay), para. 1, 23, 24, 27, 31, 34, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 75, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 89, 90, 91, 92, 93, 94, 95, 96, 100, 102, 103, 104, 105, 110, 111, 112, 118, 119, 121, 122, 123, 125, 126, 127, 128, 129, 130, 131, 133, 134, 135, 136, 137, 139, 140, 141, 143, 145, 147, 149, 152, 153, 154, 156, 158, 159, 160, 161, 164, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 181, 182, 184, 185

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Sources of Law (cont.) 186, 188, 191, 192, 195, 198, 199, 200, 202, 203, 204, 205, 206, 214, 220, 225, 236, 242, 247, 260, 263, 264, 266, 267, 268, 270, 271, 272, 275, 276, 277, 281, 282 1961 Treaty between Argentina and Uruguay of 7 April 1961 (Montevideo Treaty), para. 26, 27, 51, 58, 174, 2004 “Understanding” between Ministers for Foreign Affairs of Argentina and Uruguay of 2 March 2004, para. 34, 125, 127, 128, 129, 130, 131, 2005 Agreement between Argentina and Uruguay (Grupo Técnico de Alto Nivel – GTAN), para. 40, 132, 133, 149, 157, 1969 Vienna Convention on Law of Treaties, para. 55, 64, 65, 121, 141, 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, para. 56 1971 Ramsar Convention on Wetlands of International Importance, para. 56 1992 United Nations Convention on Biological Diversity, para. 56 2001 Stockholm Convention on Persistent Organic Pollutants, para. 56, 220, Espoo Convention, para. 215 Inter(national) references

1994 Uruguayan Decree No. 435/994 on Environmental Impact Assessment Regulation of 21 September 1994, para. 106, 117, 1966, Yearbook of the International Law Commission, 1966, Vol. II, p. 251, para. 141 2001 Yearbook of the International Law Commission, 2001, Vol. II, Part Two, para. 152 CARU Digest, Sec. E3: Pollution, Title 2, Chap. 5, Sec. 1, Art. 3, para. 199 1991 Regulatory Decree No. 5837, Government of Entre Ríos of 26 December 1991, para. 199 1997 Regulatory Decree No. 5394, Government of Entre Ríos, 7 April 1997, para. 199 1987 Goals and Principles of Environmental Impact Assessment of the United Nations Environment Programme, para. 203, 210, 215, 1006 International Finance Corporation Final Cumulative Impact Study of September 2006, para. 210



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Sources of Law (cont.) 2001 International Law Commission draft Articles on Prevention of Transboundary Harm from Hazardous Activities, para. 215 2001 Integrated Pollution Prevention and Control Reference Document on Best Available Techniques in the Pulp and Paper Industry of the European Commission of December 2001, para. 224 2008 EcoMetrix, Independent Performance Monitoring as required by the IFC Phase 2: Six Month Environmental Performance Review (July 2008), para. 226 EcoMetrix, Independent Performance Monitoring as required by the IFC, para. 226 Phase 3: Environmental Performance Review (2008 Monitoring Year, para. 226 DINAMA, Performance Report for the First Year of Operation of the Botnia Plant and the Environmental Quality of the Area of Influence, May 2009, para. 226 DINAMA, Six Month Report on the Botnia Emission Control and Environmental Performance Plan), para. 226 2005 MVOTMA, Initial Environmental Authorization for the Botnia Plant (14 February 2005), para. 228 Decree No. 253/79 or the initial environmental authorization by MVOTMA, para. 228 Scientific and Technical Report, Chap. 3, appendix: “Background Biogeochemical Studies”, para. 4.1.2; see also ibid., para. 4.3.1.2, para. 233 2009 EcoMetrix Third Monitoring Report, March 2009, para. 240 2008 DINAMA, “Six Month Report on the Botnia Emission Control and Environmental Performance Plan November 11, 2008 to May 31, 2009, para. 243 2008 Agreement Regarding Treatment of the Municipal Wastewater of Fray Bentos between Botnia and the OSE of 29 April 2008, para. 246

Representation of Parties Argentina Agent

H.E. Ms. Susana Ruiz Cerutti, Ambassador, Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship,

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Argentina (cont.) Co-agents

H.E. Mr. Horacio A. Basabe, Ambassador, Director of the Argentine Institute for Foreign Service, former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship, Member of the Permanent Court of Arbitration, H.E. Mr. Santos Goñi Marenco, Ambassador of the Argentine Republic to the Kingdom of the Netherlands,

Counsel & Advocates

Mr. Alain Pellet, Professor at the University of Paris Ouest, Nanterre-La Défense, member and former Chairman of the International Law Commission, associate member of the Institut de droit international, Mr. Philippe Sands, Q.C., Professor of International Law at University College London, Barrister at Matrix Chambers, London, Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, associate member of the Institut de droit international, Ms. Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva, Mr. Alan Béraud, Minister at the Embassy of the Argentine Republic to the European Union, former Legal Adviser to the Ministry of Foreign Affairs, International Trade and Worship, Mr. Daniel Müller, Researcher at the Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense,

Governmental Authority Mr. Homero Bibiloni, Federal Secretary for the Environment and Sustainable Development, Scientific Advisers and Experts

Mr. Esteban Lyons, National Director of Environmental Control, Secretariat of the Environment and Sustainable Development, Mr. Howard Wheater, Ph.D. in Hydrology from Bristol University, Professor of Hydrology at Imperial College and Director of the Imperial College Environment Forum, Mr. Juan Carlos Colombo, Ph.D. in Oceanography from the University of Quebec, Professor at the Faculty of Sciences and Museum of the National University of La Plata, Director of the Laboratory of Environmental Chemistry and Biogeochemistry at the National University of La Plata,



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Argentina (cont.) Mr. Neil McIntyre, Ph.D. in Environmental Engineering, Senior Lecturer in Hydrology at Imperial College London, Ms Inés Camilloni, Ph.D. in Atmospheric Sciences, Professor of Atmospheric Sciences in the Faculty of Sciences of the University of Buenos Aires, Senior Researcher at the National Research Council (CONICET), Mr. Gabriel Raggio, Doctor in Technical Sciences of the Swiss Federal Institute of Technology Zurich (ETHZ) (Switzerland), Independent Consultant, Governmental Authority Mr. Homero Bibiloni, Federal Secretary for the Environment and Sustainable Development, Legal Advisers

Mr. Holger Martinsen, Minister at the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Mr. Mario Oyarzábal, Embassy Counsellor, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Mr. Fernando Marani, Second Secretary, Embassy of the Argentine Republic in the Kingdom of the Netherlands, Mr. Gabriel Herrera, Embassy Secretary, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Ms. Cynthia Mulville, Embassy Secretary, member of the Office of the Legal Adviser, Ministry of Foreign Affairs, International Trade and Worship, Ms. Kate Cook, Barrister at Matrix Chambers, London, specializing in environmental law and law relating to development, Ms. Mara Tignino, Ph.D. in Law, Researcher at the University of Geneva, Mr. Magnus Jesko Langer, teaching and research assistant, Graduate Institute of International and Development Studies, Geneva

Uruguay Agent

H.E. Mr. Carlos Gianelli, Ambassador of the Eastern Republic of Uruguay to the United States of America,

Co-agent

H.E. Mr. Carlos Mora Medero, Ambassador of the Eastern Republic of Uruguay to the Kingdom of the Netherlands,

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Uruguay (cont.) Counsel & Advocates

Mr. Alan Boyle, Professor of International Law at the University of Edinburgh, Member of the English Bar, Mr. Luigi Condorelli, Professor at the Faculty of Law, University of Florence, Mr. Lawrence H. Martin, Foley Hoag LLP, Member of the Bars of the United States Supreme Court, the District of Columbia and the Commonwealth of Massachusetts, Mr. Stephen C. McCaffrey, Professor at the McGeorge School of Law, University of the Pacific, California, former Chairman of the International Law Commission and Special Rapporteur for the Commission’s work on the law of non-navigational uses of international watercourses, Mr. Alberto Pérez Pérez, Professor in the Faculty of Law, University of the Republic, Montevideo, Mr. Paul S. Reichler, Foley Hoag LLP, Member of the Bars of the United States Supreme Court and the District of Columbia,

Assistant Counsel

Mr. Mr. Marcelo Cousillas, Legal Counsel at the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Mr. César Rodriguez Zavalla, Chief of Cabinet, Ministry of Foreign Affairs, Mr. Carlos Mata, Deputy Director of Legal Affairs, Ministry of Foreign Affairs, Mr. Marcelo Gerona, Counsellor at the Embassy of the Eastern Republic of Uruguay in the Kingdom of the Netherlands, Mr. Eduardo Jiménez de Aréchaga, Attorney at law, admitted to the Bar of the Eastern Republic of Uruguay and Member of the Bar of New York, Mr. Adam Kahn, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts, Mr. Andrew Loewenstein, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts, Ms. Analia Gonzalez, LL.M., Foley Hoag LLP, admitted to the Bar of the Eastern Republic of Uruguay, Ms. Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and New York,



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Uruguay (cont.) Ms. Cicely Parseghian, Foley Hoag LLP, Member of the Bar of the Commonwealth of Massachusetts, Mr. Pierre Harcourt, Ph.D. candidate, University of Edinburgh, Mr. Paolo Palchetti, Associate Professor at the School of Law, University of Macerata, Ms. Maria E. Milanes-Murcia, M.A., LL.M., J.S.D. Candidate at the McGeorge School of Law, University of the Pacific, California, Ph.D. Candidate, University of Murcia, admitted to the Bar of Spain, Scientific Advisers and Experts

Ms Alicia Torres, National Director for the Environment at the Ministry of Housing, Land Use Planning and Environmental Affairs Mr. Eugenio Lorenzo, Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Mr. Cyro Croce, Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Ms. Raquel Piaggio, State Agency for Sanitary Works (OSE), Technical Consultant for the National Directorate for the Environment, Ministry of Housing, Land Use Planning and Environmental Affairs, Mr. Charles A. Menzie, Ph.D., Principal Scientist and Director of the EcoSciences Practice at Exponent, Inc., Alexandria, Virginia, Mr. Neil McCubbin, Eng., B.Sc. (Eng.), 1st Class Honours, Glasgow, Associate of the Royal College of Science and Technology, Glasgow

CASE CONCERNING CERTAIN QUESTIONS OF MUTUAL ASSISTANCE IN CRIMINAL MATTERS (Djibouti v. France) General List No.: 136 Mean(s) and date of institution of the case: Application (9 January 2006) Statement of claim/question: “The Republic of Djibouti requests the Court to adjudge and declare: 1. that the French Republic has violated its obligations under the 1986 Convention: (i) by not acting upon its undertaking of 27 January 2005 to execute the letter rogatory addressed to it by the Republic of Djibouti dated 3 November 2004; (ii) in the alternative, by not performing its obligation pursuant to Article 1 of the aforementioned Convention following its wrongful refusal given in the letter of 6 June 2005; (iii) in the further alternative, by not performing its obligation pursuant to Article 1 of the aforementioned Convention following its wrongful refusal given in the letter of 31 May 2005; 2. that the French Republic shall immediately after the delivery of the Judgment by the Court: (i) transmit the “Borrel file” in its entirety to the Republic of Djibouti; (ii) in the alternative, transmit the “Borrel file” to the Republic of Djibouti within the terms and conditions determined by the Court; 3. that the French Republic has violated its obligation pursuant to the principles of customary and general international law not to attack the immunity, honour and dignity of the President of the Republic of Djibouti: (i) by issuing a witness summons to the President of the Republic of Djibouti on 17 May 2005; (ii) by repeating such attack or by attempting to repeat such attack on 14 February 2007; (iii) by making both summonses public by immediately circulating the information to the French media;



Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

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(iv) by not responding appropriately to the two letters of protest from the Ambassador of the Republic of Djibouti in Paris dated 18 May 2005 and 14 February 2007 respectively; 4. that the French Republic has violated its obligation pursuant to the principles of customary and general international law to prevent attacks on the immunity, honour and dignity of the President of the Republic of Djibouti; 5. that the French Republic shall immediately after the delivery of the Judgment by the Court withdraw the witness summons dated 17 May 2005 and declare it null and void; 6. that the French Republic has violated its obligation pursuant to the principles of customary and general international law not to attack the person, freedom and honour of the procureur général of the Republic of Djibouti and the Head of National Security of Djibouti; 7. that the French Republic has violated its obligation pursuant to the principles of customary and general international law to prevent attacks on the person, freedom and honour of the procureur général Republic of Djibouti; 8. that the French Republic shall immediately after the delivery of the Judgment by the Court withdraw the summonses to attend as témoins assistés and the arrest warrants issued against the procureur général of the Republic of Djibouti and the Head of National Security of the Republic of Djibouti and declare them null and void; 9. that the French Republic by acting contrary to or by failing to act in accordance with Articles 1, 3, 4, 6 and 7 of the Treaty of Friendship and Co-operation of 1977 individually or collectively has violated the spirit and purpose of that Treaty, as well as the obligations deriving therefrom; 10. that the French Republic shall cease its wrongful conduct and abide strictly by the obligations incumbent on it in the future; 11. that the French Republic shall provide the Republic of Djibouti with specific assurances and guarantees of non-repetition of the wrongful acts complained of.” Basis of jurisdiction invoked by the Applicant(s): Art. 38(5) Rules of the Court.

562

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to)

Public sittings

Total

9 January 2006 to 4 June 2008 (2 year/4 months / 26 days)

21–29 January 2008

Merits

9 January 2006 to 4 June 2008 (2 year/4 months / 26 days)

–

Orders Date of Order and Authority

Content

15 November 2006 Court – President Higgins

Fixing of time-limits: 15 March 2007 – Memorial of Djibouti 13 July 2007 – Counter-Memorial of France

Section B – Merits Official citation: Certain Questions of Mutual Assistance in Criminal Matters, (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 177 Date of Judgment: 4 June 2008 Authoritative text: French Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Keith, Sepúlveda-amor, Bennouna, Skotnikov; Judges ad hoc Guillaume, Yusuf; Registrar Couvreur. Table of Contents: I. The Facts of the Case II. Jurisdiction of the Court (1) Preliminary question regarding jurisdiction and admissibility (2) Jurisdiction ratione materiae (a) Positions of the Parties (b) Forum prorogatum as a basis of the jurisdiction of the Court (3) Extent of the mutual consent of the Parties (a) Djibouti’s Application (b) France’s response to the Application (c) Findings of the Court



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III. The Alleged violation of the Treaty of Friendship and Cooperation between France and Djibouti of 27 June IV. The Alleged Violation of the Convention on Mutual Assistance in in Criminal Matters between France and Djibouti of 27 September 1986 (1) The obligation to execute the international letter rogatory (2) The alleged undertaking by France to execute the international letter rogatory requested by Djibouti (3) France’s refusal to execute the international letter rogatory V. The Alleged Violations of the Obligation to Prevent Attacks On the Person, Freedom or Dignity of an Internationally Protected Person (1) The alleged attacks on the immunity from jurisdiction or the inviolability of the Djiboutian Head of State (a) The witness summons addressed to the Djiboutian Head of State on 17 May 2005 (b) The witness summons addressed to the Djiboutian Head of State on 14 February 2007 (2) The alleged attacks on the immunities said to be enjoyed by the procureur de la République and the Head of National Security of Djibouti VI. Remedies VII. Operative Clause Text of the operative paragraph(s) (p. 246, para. 205) THE COURT, (1) As regards the jurisdiction of the Court, (a) Unanimously, Finds that it has jurisdiction to adjudicate upon the dispute concerning the execution of the letter rogatory addressed by the Republic of Djibouti to the French Republic on 3 November 2004; (b) By fifteen votes to one, Finds that it has jurisdiction to adjudicate upon the dispute concerning the summons as witness addressed to the President of the Republic of Djibouti on 17 May 2005, and the summonses as “témoins assistés” (legally assisted witnesses) addressed to two senior Djiboutian officials on 3 and 4 November 2004 and 17 June 2005; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judges ad hoc Guillaume, Yusuf AGAINST: Judge Parra-Aranguren

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Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

(c) By twelve votes to four, Finds that it has jurisdiction to adjudicate upon the dispute concerning the summons as witness addressed to the President of the Republic of Djibouti on 14 February 2007; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Shi, Koroma, Buergenthal, Owada, Simma, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Yusuf AGAINST: Judges Ranjeva, Parra-Aranguren, Tomka; Judge ad hoc Guillaume (d) By thirteen votes to three, Finds that it has no jurisdiction to adjudicate upon the dispute concerning the arrest warrants issued against two senior Djiboutian officials on 27 September 2006; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Simma, Tomka, Keith, SepúlvedaAmor, Bennouna; Judge ad hoc Guillaume AGAINST: Judges Owada, Skotnikov; Judge ad hoc Yusuf (2) As regards the final submissions of the Republic of Djibouti on the merits, (a) Unanimously, Finds that the French Republic, by not giving the Republic of Djibouti the reasons for its refusal to execute the letter rogatory presented by the latter on 3 November 2004, failed to comply with its international obligation under Article 17 of the Convention on Mutual Assistance in Criminal Matters between the two Parties, signed in Djibouti on 27 September 1986, and that its finding of this violation constitutes appropriate satisfaction; (b) By fifteen votes to one, Rejects all other final submissions presented by the Republic of Djibouti. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Parra-Aranguren, Buergenthal, Owada, Simma, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Judge ad hoc Guillaume AGAINST: Judge ad hoc Yusuf.



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Declarations/Opinions Separate Opinion

Judges Ranjeva, Koroma, Parra-Aranguren

Declaration

Judge Owada

Separate Opinion

Judge Tomka

Declarations

Judges Keith, Skotnikov

Declaration

Judge ad hoc Guillaume

Separate Opinion

Judge ad hoc Yusuf

Sources of Law UN Charter

Art. 2(1), p. 183(16)

ICJ Statute

Art. 17(2), p. 181–2(6) Art. 31, p. 181–2(6), 182(7) Art. 36(1), p. 203(60, 61) Art. 36(2), p. 198(39), 202(56), 203(6) Art. 40, p. 207(69) Art. 40(3), p. 181(5)

ICJ Rules of Court

Art. 37(1), p. 181–2(6) Art. 38, p. 207(69) Art. 38(2), p. 205(64) Art. 38(5), p. 181(2, 3, 4), 198(39), 199(41), 202(56), 203(58), 204(63), 205(64), 206(65), 209(77), 212(90) Art. 53(2), p. 183(13) Art. 56(4), p. 182(10)

PCIJ Case-Law

Phosphates in Morocco, Judgment, 1938, [P.C.I.J. Series A/B, No. 74, p. 29], p. 199–200(45) Mavrommatis Palestine Concessions, [P.C.I.J., Series A, No. 2, p. 34], p. 202(57) Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 2, 1928, [P.C.I.J., Series A, No. 15, p. 24], p. 203–4(61), 204(62) Certain German Interests in Polish Upper Sliesia, Merits, Judgment No. 7, 1926, [P.C.I.J. Series A, p. 30], p. 229(145) Free Zones of Upper Savoy and the District of Gex, Judgment, 1032, [P.C.I.J., Series A/B, No. 46, p. 167], p. 229(145)

ICJ case-law

Current case Order of 15 November 2006, p. 182(8) Previous cases Corfu Channel, (United Kingdom v. Albania), Preliminary Objections, Judgment, 1948, [I.C.J. Reports 1947–1948, p. 28], p. 198–9(40), 200–201(48) [I.C.J. Reports 1947–1948, p. 27], p. 203(60), 204(62)

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Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

Sources of Law (cont.) Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, [I.C.J. Reports 2006, p. 39(88)], p. 200(46, 48) [I.C.J. Reports 2006, p. 18], p. 204(62) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, [I.C.J. Reports 1996(II), p. 620–21(40)], p. 204(62) Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, [I.C.J. Reports 1952, p. 113–114], p. 204(62) Monetary Gold Removed from Rome in 1943, (Italy v. France, UK and USA), Judgment, [I.C.J. Report 1954, p. 30], p. 204(62) Treatment in Hungary of Aircraft and Crew of United States of America (USA v. Hungary), Order of 12 July 1954, [I.C.J. Reports 1954, p. 99], p. 204(63) Treatment in Hungary of Aircraft and Crew of United States of America (USA v. USSR), Order of 12 July 1954, [I.C.J. Reports 1954, p. 103], p. 204–5(63) Aerial Incident of 10 March 1953 (USA v. Czechoslovakia), Order of 14 March 1956, [I.C.J. Reports 1956, p. 6], p. 204–5(63) Antarctica (UK v. Chile), Order of 16 March 1956, [I.C.J. Reports 1956, p. 15], p. 204–5(63) Aerial Incident of 7 November 1954 (USA v. USSR), Order of 7 October 1959, [I.C.J. Reports 1959, p. 276], p. 204–5(63) Aerial Incident of 4 September 1954 (USA v. USSR), Order of 9 December 1958, [I.C.J. Reports 1958, p. 158], p. 204–5(63) Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 33], p. 207(70) Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment [I.C.J. Reports 1974, p. 203], p. 210–1(85), 211–2(87) LaGrand (German v. USA), Judgment [I.C.J. Reports 2001, p. 483–484(45)], p. 211–12(87) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 264–267 (69–70)], p. 211–12(87)



Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

567

Sources of Law (cont.) Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, [I.C.J. Reports 2002, p. 16(36)], p. 211–12(87) [I.C.J. Reports 2002, p. 29–30(70–71)], p. 236(167) [I.C.J. Reports 2002, p. 20–21(51)], p. 236–7(170) Oil Platforms (Islamic Republic of Iran v. United States of America), [I.C.J. Reports 1996 (II), p. 814 (28)], p. 214(98), 215(101). 217(108), 218(109, 110) [I.C.J. Reports 2003 (II), p. 183 (43)], Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), [I.C.J. Reports 1986, p. 137(273)], p. 215(101), 217(107), 218(110) [I.C.J. Reports 1986, p. 116(222)], p. 229(145) Kasikili/Sedudu Island (Botswana/Namibia), [I.C.J. Reports 1999 (II), p. 1075 (18)], p. 219(112) Treaties

1977 Treaty of Friendship and Cooperation between France and Djibouti of 27 June 1977, p. 180–81(1), 183(16), 184(17), 187(19), 213–4(95), 214(96, 97, 98), 215(99, 100, 101), 216(102, 103, 104), 217(106), 218(110, 111), 219(113, 114) 1961 Vienna Convention on Diplomatic Relations of 18 April 1961, p. 180–81(1), 183–84(16), 194–95(34), 208(74), 219(113), 235(165), 236(167), 238(174), 240(181), 243–4(194) 1969 Vienna Convention on the Law of Treaties of 23 May 1969, p. 219(112), 221(121), 222(123, 124), 231–2(153) 1969 Convention on Special Missions of 8 December 1969, p. 241(185), 243–4(194) 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973, p. 18–81(1), 181(2), 183(16), 199(42), 233(157, 158, 159), 240(181) 1986 Convention on Mutual Assistance in Criminal Matters between Djibouti and France of 27 September 1986, p. 183(16), 184(17), 185–6(18), 188(21), 189(24), 190(25), 191–2(28), 192(29), 196–7(37), 206(68), 209(79), 215–6(101), 216(102), 216–7(105), 217(106), 218(111), 219(113, 114, 115), 220(116, 117, 118, 119), 221(120, 121), 222(122, 123, 124), 223(125), 223–4(126), 224(127), 225(131), 226(134), 226–7(137), 227(138, 139, 140), 229(145), 230(147, 148, 149, 150), 231(152, 153), 232(154, 155, 156), 245(202, 203), 246–7(205) US-Nicaragua Treaty, p. 217(107)

568

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

Sources of Law (cont.) 1955 Treaty of Amity, Economic Relations and Consular Rights, p. 217(108), 218(109) 1969 Convention concerning Reciprocal Legal Assistance in Criminal Matters between France and Spain of 9 April 1969, p. 232(156) 1994 Convention on Judicial Assistance in Criminal Matters between Mexico and France of 27 January 1994, p. 232(156) Inter(national) legal Judgment of the Cour de cassation de grand instance of references 29 October 1997, p. 188(21), 5 March 2003, p. 195(35) Letters of French Investigating Judges of 30 October 1998 and 15 February 2000, p. 188(21), 238–9(176) Letters of French Investigating Judges of 15 May 2001, p. 188(22) Letter of Djiboutian Investigating Judge of 3 November 2004, p. 190(26), 192(29), 193(30), 196(37), 201(52), 208(75), 209(79). 210(84), 219–20(115), 220(117), 223(125), 225(130), 227(140), 246–7(205) Letter of French Director of Criminal Affairs and Pardons of 18 January 2005, p. 192(29), 227(140) Letter of Djibouti’s Minister for Justice of 10 August 2004, p. 195(35) Arrest Warrant issued by the Chambre de l’instructions of the Versailles Court of Appeal of 27 September 2006, p. 195– 96(35) Letter of Djibouti’s Minister for Foreign Affairs and International Cooperation to French Minister for Foreign Affairs of 18 May 2005, p. 193(30), 193(31), 194(32), 229(144) Communication of Investigating Judge to the Minister of Justice of France of 14 February 2007, p. 194(32), 238(176), 239(178), 240(179) Letter of French Director of Criminal Affairs and Pardons of 31 May 2005, p. 190(26), 225(133), 226(138), 227–8(140), 228(142, 143), 231(152) Note verbale from French Ambassador of 16 June 2005, p. 228(142) NV of Djibouti’s Ambassador to France of 27 January 2005, p. 190(26), 194–95(34), 223(125), 223–24(126)



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569

Sources of Law (cont.) Letter from Principal Private Secretary to the Minister of Justice of 27 January 2005, p. 223–4(126, 127, 128, 129) Press Release of French Ministry of Foreign Affairs of 29 January 2005, p. 191(27), 196(37) Order of Judge Clément of 8 February 2005, p. 190(28), 203(59), 225–6(133), 227–8(140), 230(147) Letter of Djiboutian Minister for Foreign Affairs to the French Foreign Minister of 16 December 2003, p. 189(23) Judgment of the Chambre d’accusation of the Paris Court of Appeal of 21 June 2000, p. 188(22) French Code of Criminal Procedure, p. 194–95(34), 196–7(37), 223–4(126), 224(129), 234(163), 235(166), 236(168), 237(171, 172), 238–9(176), 239(177, 178), 240(179), 241(184) Judgment of Paris Court of Appeal of 19 October 2006, p. 196(37), 224–5(129), 225(131), 226(136), 227–8(140), 229(146) Letter from the French Minister of Defence to the Minister of Justice of 6 January 2005 (000262/DEC/CAB/CCL), p. 196–7(37) Letter from French Ambassador to Djibouti to the Djiboutian Minister for Foreign Affairs of 6 June 2005, p. 225–6(133), 229(144), 231(152) Acts and Documents Concerning the Organisation of the Court: Elaboration of the Rules of Court of March 11th 1936, [P.C.I.J. Series D, No. 2, Add. 3, p. 159–160], p. 205(64) Statement by the Spokesman of the French Ministry of Foreign Affairs of 27 January 2005, p. 223–4(126), 225(130) Letter of Principal Private Secretary to the Minister of Justice of 1 October 2004, p. 224(129) Law of 8 July 1998 establishing a National Defence Secrets Consultative Committee, p. 226(137) Letter of 11 February 2005 from Investigating Judge Clément, p. 230–1(150) Resolution on “Immunities from Jurisdiction and Execution of Heads of State and Government in International Law” of Institut de droit international of 2001, Vancouver, p. 236(169) 2004 Judgment of the chamber criminelle of the French Cour de cassation of 23 November 2004, p. 242(189)

570

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Representation of Parties Djibouti Agent

H.E. Mr. Siad Mohamed Doualeh, Ambassador of the Republic of Djibouti to the Swiss Confederation,

Deputy Agent

Mr. Phon van den Biesen, Attorney at Law, Amsterdam,

Counsel and Advocate

Mr. Luigi Condorelli, Professor at the Faculty of Law of the University of Florence,

Counsel

Mr. Djama Souleiman Ali, procureur général of the Republic of Djibouti, Mr. Makane Moïse Mbengue, Doctor of Law, Researcher, Hauser Global Law School Program, New York University School of Law, Mr. Michail S. Vagias, Ph.D. Cand. Leiden University, Researcher, Scholar of the Greek State Scholarships Foundation, Mr. Paolo Palchetti, Associate Professor at the University of Macerata (Italy), Ms. Souad Houssein Farah, Legal Adviser to the Presidency of the Republic of Djibouti

France Agent

Ms. Edwige Belliard, Director of Legal Affairs, Ministry of Foreign and European Affairs,

Counsel

Mr. Alain Pellet, Professor at the University of Paris X-Nanterre, Member and former Chairman of the United Nations International Law Commission, Associate of the Institut de droit international, Mr. Hervé Ascensio, Professor at the University of Paris I (Panthéon-Sorbonne),

Adviser

Mr. Samuel Laine, Head of the Office of International Mutual Assistance in Criminal Matters, Ministry of Justice,

Assistants

Ms. Sandrine Barbier, Chargée de mission, Directorate of Legal Affairs, Ministry of Foreign and European Affairs, Mr. Antoine Ollivier, Chargé de mission, Directorate of Legal Affairs, Ministry of Foreign and European Affairs, Mr. Thierry Caboche, Foreign Affairs Counsellor, Directorate for Africa and the Indian Ocean, Ministry of Foreign and European Affairs

MARITIME DISPUTE (Peru v. Chile) Status: Case Pending as of 31 December 2010 General List No.: 137 Mean(s) and date of institution of the case: Application (16 January 2008) Statement of claim/question: Peru: “requests the Court to determine the course of the boundary between the maritime zones of the two States in accordance with international law, as indicated in Section IV above, and to adjudge and declare that Peru possesses exclusive sovereign rights in the maritime area situated within the limit of 200 nautical miles from its coast but outside Chile’s exclusive economic zone or continental shelf.” Basis of jurisdiction invoked by the Applicant(s): Article XXXI of the American Treaty on Pacific Settlement (Pact of Bogota) of 30 April 1948 Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

16 January 2008 continues

Orders Date of Order and Authority

Content

31 March 2008 Court – President Higgins

Fixing of time-limits: 20 March 2009 – Memorial of Peru 9 March 2010 – Counter-Memorial of Chile

27 April 2010 Court – Vice-President Tomka

Authorisation of submission of a Reply by Peru and a Rejoinder by Chile and fixing of time-limits: 9 November 2010 – Reply of Peru 11 July 2011 – Rejoinder of Chile

AERIAL HERBICIDE SPRAYING (Ecuador v. Colombia) Status: Case Pending as of 31 December 2010 General List No.: 138 Mean(s) and date of institution of the case: Application (31 March 2008) Statement of claim/question: Ecuador requests the Court to adjudge and declare that: (A) Colombia has violated its obligations under international law by causing or allowing the deposit on the territory of Ecuador of toxic herbicides that have caused damage to human health, property and the environment; (B) Colombia shall indemnify Ecuador for any loss or damage caused by its internationally unlawful acts, namely the use of herbicides, including by aerial dispersion, and in particular: (i) death or injury to the health of any person or persons arising from the use of such herbicides; and (ii) any loss of or damage to the property or livelihood or human rights of such persons; and (iii) environmental damage or the depletion of natural resources; and (iv) the costs of monitoring to identify and assess future risks to public health, human rights and the environment resulting from Colombia’s use of herbicides; and (v) any other loss or damage; and (C) Colombia shall (i) respect the sovereignty and territorial integrity of Ecuador; and (ii) forthwith, take all steps necessary to prevent, on any part of its territory, the use of any toxic herbicides in such a way that they could be deposited onto the territory of Ecuador; and (iii) prohibit the use, by means of aerial dispersion, of such herbicides in Ecuador, or on or near any part of its border with Ecuador . . .” Basis of jurisdiction invoked by the Applicant(s): Article XXXI American Treaty on Pacific Settlement of Disputes, Bogotá of 30 April 1948 (“Pact of Bogotá”).

Aerial Herbicide Spraying (Ecuador v. Colombia)



Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

31 March 2008 to continues

Orders Date of Order and Authority

Content

30 May 2008 Court – President Higgins

Fixing of time-limits: 29 April 2009 – Memorial of Ecuador 29 March 2010 – Counter-Memorial of Colombia

25 June 2010 Court – President Owada

Fixing of time-limits: 31 January 2011 – Reply of Ecuador 1 December 2011 – Rejoinder of Colombia

573

REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 31 MARCH 2004 IN THE CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS (Mexico v. United States of America) General List No.: 139 Mean(s) and date of institution of the case: Application (5 June 2008) Statement of claim/question: “On the basis of the facts and arguments set out above and in the United States’ initial Written Observations on the Application for Interpretation, the Government of the United States of America requests that the Court adjudge and declare that the application of the United Mexican States for interpretation of the Avena Judgment is dismissed. In the alternative and as subsidiary submissions in the event that the Court should decline to dismiss the application in its entirety, the United States requests that the Court adjudge and declare: (a) that the following supplemental requests by Mexico are dismissed: (1) that the Court declare that the United States breached the Court’s July 16 Order; (2) that the Court declare that the United States breached the Avena Judgment; and (3) that the Court order the United States to issue a guarantee of non-repetition; (b) an interpretation of the Avena Judgment in accordance with paragraph 86 (a) of Mexico’s Response to the Written Observations of the United States.” Request for Provisional Measures: Mexico asked the Court to indicate: (a) that the Government of the United States take all measures necessary to ensure that José Enresto, Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending the conclusion of the proceedings instituted [on 5 June 2008]; (b) that the Government of the United States inform the Court of all measures taken in implementation of subparagraph (a); and



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575

(c) that the Government of the United States ensure that no action is taken that might prejudice the rights of Mexico or its nationals with respect to any interpretation this Court may render with respect to paragraph 153(9) of its Avena Judgment; and whereas Mexico further asked the Court “to treat its request for the indication of provisional measures as a matter of the greatest urgency” . . . “in view of the extreme gravity and immediacy of the threat that authorities in the United States will execute a Mexican national in violation of obligations the United States owes to Mexico”. Basis of jurisdiction invoked by the Applicant(s): Art. 60 of the ICJ Statute and Articles 98 and 100 of the Rules of Court. Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

5 June 2008 to 19 January 2009

Provisional Measures

5 June 2008 to 16 July 2008 (1 month / 11 days)

Merits

17 July 2008 to 19 January 2009

Public sittings 19–20 June 2008

Orders Date of Order and Authority 16 July 2008

Content Please refer Section B

Section B – Provisional Measures Official citation: Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), (Mexico v. United States of America) Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 311. Date of order: 16 July 2008 Authoritative text: English

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Composition of the Court: Present: President Higgins; Vice-President AlKhasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov; Registrar Couvreur. Text of the operative paragraph(s) (p. 331, para. 80) THE COURT I. By seven votes to five, Finds that the submission by the United States of America seeking the dismissal of the Application filed by the United Mexican States can not be upheld; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Abraham, Sepúlveda-Amor, Bennouna AGAINST: Judges Buergenthal, Owada, Tomka, Keith, Skotnikov II. Indicates the following provisional measures: (a) By seven votes to five, The United States of America shall take all measures necessary to tensure that Messrs. José Enresto, Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the Reuqest for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the Court’s Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America); IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Abraham, Sepúlveda-amor, Bennouna AGAINST: Judges Buergenthal, Owada, Tomka, Keith, Skotnikov (b) By eleven votes to one, The Government of the United States of America shall inform the Court of the measures taken in implementation of this Order; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Owada, Tomka, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov AGAINST: Judge Buergenthal (c) By eleven votes to one, Decides that, until the Court has rendered its judgment on the Request for interpretation, it shall remain seised of the matters which form the subject of this Order.



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577

IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Owada, Tomka, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov AGAINST: Judge Buergenthal. Declarations/Opinions Dissenting Opinion

Judge Buergenthal

Joint Dissenting Opinion

Judges Owada, Tomka and Keith

Dissenting Opinion

Judge Skotnikov

Sources of Law UN Charter

Art. 94(1), p. 314(7)

ICJ Statute

Art. 36(2), p. 325(53) Art. 38, p. 325(53) Art. 40(2), p. 317(24) Art. 41, p. 311, 315(14), 316(17, 18), 330(74) Art. 48, p. 311 Art. 60, 312, 314(8), 319(32), 322(60), 323(44, 45, 46), 325(53, 54), 326(55, 57)

ICJ Rules of Court

Art. 38(4), p. 317(24) Art. 73, p. 311, 315(14) Art. 73(2), p. 317(24) Art. 74, p. 311, 315(74) Art. 74(3), p. 317(25, 27) Art. 75, p. 315(74) Art. 98, p. 312 Art. 98(1), p. 323(45) Art. 100, p. 312

PCIJ case-law

Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) [ Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 11], p. 323(47), 325-6(54)

ICJ case-law

Other case Avena and Other Mexican Nationals (Mexico v. United States of America) [I.C.J. Reports 2004 (I), p. 12], p. 312, 312 (1, 2, 3), 313(4, 5, 6), 314(7, 9, 10), 315(12), 316(18, 19), 317(23), 318(29, 30), 319(32, 33, 34), 320(35, 36), 321(37, 39), 322(41, 42), 323(46, 47, 48), 324(49, 50), 325(51, 53), 326(55), 327(60, 61), 328(63), 329(67, 68, 69), 330(75, 76), 330-1(77), 331(78, 80)

578

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

Sources of Law (cont.) Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, [I.C.J. Reports 1950, p. 402], p. 328(63) Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, [I.C.J. Reports 1999(I), p. 35(10], p. 323(47) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [I.C.J. Reports 1996(I), p. 22(35)], p. 326-7(58) LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, [I.C.J. Reports 1999 (I), p. 15(22)], p. 328(65) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), (Tunisia/Libya), [I.C.J. Reports 1985, p. 217–218(46)], p. 326(55) [I.C.J. Reports 1985, p. 223(56)], p. 328(63) Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17(23)], p. 328(66) Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107(22)], p. 328(66) Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, [I.C.J. Reports 2007(I), p. 11(32)], p. 328–9(66) Vienna Convention on Consular Relations (Paraguay v. USA), Provisional Measures, Order of 9 April 1998, [I.C.J. Reports 1998, p. 257(37)], p. 330(72) Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 313(6), 316(18), 319(34), 323–4(48), 328(63) 2005 Optional Protocol to the Vienna Convention on Consular Relations on 7 March 2005, p. 319(32)

Inter(national) legal references

Memorandum of the US President of 28 February 2005, p. 312(3), 313(4), 315(11), 324(49)



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

579

Representation of Parties Mexico H.E. Mr. Juan Manuel Gómez-Robledo H.E. Mr. Joel Antonio Hernández García Ms. Sandra Babcock Ms. Catherine Amirfar Mr. Donald Francis Donovan H.E. Mr. Jorge Lomónaco Tonda

USA Mr. John B. Bellinger III Mr. Stephen Mathias Mr. James H. Thessin Mr. Michael J. Mattler Mr. Vaughan Lowe

Section C – Merits Official citation: Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), (Mexico v. United States of America) Judgment, I.C.J. Reports 2009, p. 3. Date of order: 19 January 2009 Authoritative text: English Composition of the Court: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov; Registrar Couvreur. Headnotes: Article 60 of the Statute of the Court – Independent basis of jurisdiction. Conditions on the exercise of jurisdiction to entertain a request for interpretation – Question of the existence of a dispute as to the meaning or scope of paragraph 153 (9) of the Judgment of 31 March 2004 – For the Court to determine whether a dispute exists – No dispute as to whether paragraph 153 (9) lays down an obligation of result.

580

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

Question of the existence of a dispute as to those upon whom the obligation of result specifically falls – Two possible approaches based on the Parties’ positions – Possible existence of a dispute as to those upon whom the obligation specifically falls – Possible absence of a dispute on this point failing a sufficiently precise indication. Question of the direct effect of the obligation established in paragraph 153 (9) – No decision in the Judgment of 31 March 2004 as to the direct effect of the obligation – Question of direct effect therefore cannot be the subject of a request for interpretation – Reiteration of the principle that considerations of domestic law cannot in any event relieve the Parties of obligations deriving from judgments of the Court. Question of breach by the United States of its legal obligation to comply withthe Order indicating provisional measures of 16 July 2008 – Court’s jurisdiction to rule on this question in proceedings on a request for interpretation 31 March 2004 – Lack of jurisdiction of the Court to consider this question in proceedings for interpretation. Mexico’s request for the Court to order the United States to provide guarantees of non-repetition – Binding character of the Judgment of 31 March 2004 – Undertakings already given by the United States. Text of the operative paragraph(s) (p. 20, para. 61) THE COURT, (1) By eleven votes to one, Finds that the matters claimed by the United Mexican States to be in issue between the Parties, requiring an interpretation under Article 60 of the Statute, are not matters which have been decided by the Court in its Judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), including paragraph 153 (9), and thus cannot give rise to the interpretation requested by the United Mexican States; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov AGAINST : Judge Sepúlveda-Amor (2) Unanimously, Finds that the United States of America has breached the obligation incumbent upon it under the Order indicating provisional measures of 16 July 2008, in the case of Mr. José Ernesto Medellín Rojas;



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

581

(3) By eleven votes to one, Reaffirms the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment and takes note of the undertakings given by the United States of America in these proceedings; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Keith, Sepúlveda-Amor, Bennouna, Skotnikov AGAINST: Judge Abraham (4) By eleven votes to one, Declines, in these circumstances, the request of the United Mexican States for the Court to order the United States of America to provide guarantees of non-repetition; IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov AGAINST: Judge Sepúlveda-Amor (5) By eleven votes to one, Rejects all further submissions of the United Mexican States. IN FAVOUR: President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Koroma, Buergenthal, Owada, Tomka, Abraham, Keith, Bennouna, Skotnikov AGAINST: Judge Sepúlveda-Amor. Declarations/Opinions Declaration

Judges Koroma and Abraham

Dissenting Opinion

Judge Sepúlveda-Amor

Sources of Law UN Charter

Art. 94, p. 10(24) Article 94(1), p. 13(31)

ICJ Statute

Art. 36(1), p. 77–8(1) Art. 36(2), p. 9(17) Art. 40(2), p. 5(2) Art. 40(3), p. 5(2) Art. 41, p. 5(3) Art. 60, p. 5(1), 9(14, 15, 16, 17), 12(28, 29), 13(30), 14(35), 17(42, 43, 45), 18(49, 50), 19(51), 20(56, 59, 61)

582

Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

Sources of Law (cont.) ICJ Rules of Court

Art. 73, p. 5(3) Art. 74, p. 5(3) Art. 75, p. 5(3) Art. 98, p. 5(1) Art. 98(2), p. 15(38), 16(41) Art. 98(3), p. 5(4), 10(22) Art. 98(4), p. 6(6, 8), 10(22) Art. 100, p. 5(1)

PCIJ case-law

Chorzów Factory, [ Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 12], p. 13(29)

ICJ case-law

Current Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004(I), p. 12], 5(2), 6(9), 8(11), 9(13, 15, 17)10(20), 10(23, 24), 11(25), 12(27, 28), 13(30, 31), 15(36, 38), 16(39, 41), 17(44, 45), 18(48, 49), 19(52, 53, 54, 55), 20(57, 58, 60), 21(61) Order of 16 July 2008, p. 5(3), 6(5, 6), 8(10), 9(15, 16), 12(27), 15(36), 18(49, 50), 19(52, 53, 54) Others Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, [I.C.J. Reports 1999 (I), p. 36(12)], p. 10(21) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, [I.C.J. Reports 1985, p. 217–218(46)], p. 10(21)) Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, [I.C.J. Reports 1950, p. 402], p. 10(21), 17(44)

Treaties

1963 Vienna Convention on Consular Relations of 24 April 1963, p. 8(11), 9(15), 13(31, 32), 20(55)

Inter(national) references

2005 Memorandum of 28 February 2005 to the Attorney General of the United States, p. 11(25) 2008 Medellín v. Texas [Supreme Court Reporter, Vol. 128, 2008, p. 1346], p. 13(31)



Judgment of 31 March 2004, Avena and Other Mexican Nationals (Mexico v. United States of America)

583

Representation of Parties Mexico Mexico

H.E. Mr. Juan Manuel Gómez-Robledo, Ambassador, UnderSecretary for Multilateral Affairs and Human Rights, Ministry of Foreign Affairs of Mexico, H.E. Mr. Joel Antonio Hernández García, Ambassador, Legal Adviser, Ministry of Foreign Affairs of Mexico, H.E. Mr. Jorge Lomónaco Tonda, Ambassador of Mexico to the Kingdom of the Netherlands

USA Agent

Mr. John B. Bellinger, III, Legal Adviser, United States Department of State,

Co-Agent

Mr. James H. Thessin, Deputy Legal Adviser, United States Department of State

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (Georgia v. Russian Federation) Status: Case Pending as of 31 December 2010 General List No.: 140 Mean(s) and date of institution of the case: Application (12 August 2008) Statement of claim/question: Georgia asked the Court to adjudge and declare: “1. that the Russian Federation, through its State organs, State agents and other persons and entities exercising governmental authority, and through the de facto governmental authorities in South Ossetia and Abkhazia and militias operating in those areas, is responsible for violations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention by the following actions: (i) the ethnic cleansing of Georgians in South Ossetia; (ii) the frustration of the right of return of Georgians to their homes in South Ossetia and Abkhazia; and (iii) the destruction of Georgian culture and identity in South Ossetia and Abkhazia; 2. that the Russian Federation is responsible for the violation of the Court’s Order on Provisional Measures of 15 October 2008 by the following actions: (i) acts of discrimination, including by violence, against Georgians in South Ossetia and Abkhazia; (ii) the frustration of the right of return of Georgians to their homes in South Ossetia and Abkhazia; (iii) the destruction of Georgian culture and identity in South Ossetia and Abkhazia; and (iv) the obstruction of access to humanitarian assistance; 3. that the Russian Federation is under an obligation to cease all actions in contravention of its obligations under Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention and the Court’s Order on Provisional Measures,



Application of the International Convention on the Elimination 585 of all Forms of Racial Discrimination (Georgia v. Russian Federation) including all acts of discrimination as well as all support, defence, sponsorship of, or efforts to consolidate, such discrimination, and to provide appropriate assurances and guarantees that it will refrain from all such acts in the future; 4. that the Russian Federation is under an obligation to re-establish the situation that existed before its violations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention, in particular by taking prompt and effective measures to secure the return of the internally displaced Georgians to their homes in South Ossetia and Abkhazia; 5. that the Russian Federation is under an obligation to compensate for the damage caused by its violations of Articles 2 (1) (a), 2 (1) (b), 2 (1) (d), 3 and 5 of the 1965 Convention and of the Court’s Order on Provisional Measures with such compensation to be quantified in a separate phase of these proceedings.” Request for Provisional Measures: Georgia requested the Court to order the following measures: “(a) the Russian Federation shall give full effect to its obligations under CERD; (b) the Russian Federation shall immediately cease and desist from any and all conduct that could result, directly or indirectly, in any form of ethnic discrimination by its armed forces, or other organs, agents, and persons and entities exercising elements of governmental authority, or through separatist forces in South Ossetia and Abkhazia under its direction and control, or in territories under the occupation or effective control of Russian forces; (c) the Russian Federation shall in particular immediately cease and desist from discriminatory violations of the human rights of ethnic Georgians, including attacks against civilians and civilian objects, murder, forced displacement, denial of humanitarian assistance, extensive pillage and destruction of towns and villages, and any measures that would render permanent the denial of the right to return of IDPs, in South Ossetia and adjoining regions of Georgia, and in Abkhazia and adjoining regions of Georgia, and any other territories under Russian occupation or effective control”; Basis of jurisdiction invoked by the Applicant(s): Art. 22 of the International Convention on the Elimination of All Forms of Racial Discrimination.

586

Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to) Total

12 August 2008 continues

Provisional Measures

12 August 2008 to 15 October 2008 (2 month / 3 days)

Public sittings 8, 9, 10 September 2008

Orders Date of Order and Authority

Content

15 October 2008 Court – President Higgins

Please refer Section B

2 December 2008 President Higgins

Fixing of time-limits 2 September 2009 – Memorial of Georgia 2 July 2010 – Counter-Memorial of the Russian Federation

11 December 2009 Court – President Owada

Preliminary Objections by the Russian Federation 1 April 2010 – Written statement of observations and submissions by Georgia on the Preliminary Objections raised by the Russian Federation

Section B – Provisional Measures Official citation: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, p. 353 Date of order: 15 October 2008 Authoritative text: French Composition of the Court: Present: President Higgins; Vice-President AlKhasawneh; Judges Ranjeva, Shi, Koroma, Buergenthal, Owada, Simma, Tomka, Abraham, Keith, Sepúlveda-amor, Bennouna, Skotnikov; Judge ad hoc Gaja; Registrar Couvreur.



Application of the International Convention on the Elimination 587 of all Forms of Racial Discrimination (Georgia v. Russian Federation) Text of the operative paragraph(s) (p. 398, para. 149) THE COURT, reminding the Parties of their duty to comply with their obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, Indicates the following provisional measures: A. By eight votes to seven, Both Parties, within South Ossetia and Abkhazia and adjacent areas in Georgia, shall (1) refrain from any act of racial discrimination against persons, groups of persons or institutions; (2) abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations; (3) do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin, (i) security of persons; (ii) the right of persons to freedom of movement and residence within the border of the State; (iii) the protection of the property of displaced persons and of refugees; (4) do all in their power to ensure that public authorities and public institutions under their control or influence do not engage in acts of racial discrimination against persons, groups of persons or institutions; IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor, Judge ad hoc Gaja AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka, Bennouna, Skotnikov B. By eight votes to seven, Both Parties shall facilitate, and refrain from placing any impediment to, humanitarian assistance in support of the rights to which the local population are entitled under the International Convention on the Elimination of All Forms of Racial Discrimination; IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor; Judge ad hoc Gaja AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka, Bennouna, Skotnikov C. By eight votes to seven, Each Party shall refrain from any action which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve;

588

Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation)

IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor; Judge ad hoc Gaja AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka, Bennouna, Skotnikov D. By eight votes to seven, Each Party shall inform the Court as to its compliance with the above provisional measures; IN FAVOUR: President Higgins; Judges Buergenthal, Owada, Simma, Abraham, Keith, Sepúlveda-Amor; Judge ad hoc Gaja AGAINST: Vice-President Al-Khasawneh; Judges Ranjeva, Shi, Koroma, Tomka, Bennouna, Skotnikov. Declarations/Opinions Joint Dissenting Opinion

Vice-President Al-Khasawneh, Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov

Declaration

Judge ad hoc Gaja

Sources of Law UN Charter

Art. 51, p. 370–1(66)

ICJ Statute

Art. 31, p. 364(39) Art. 36(2), p. 325(53) Art. 38, p. 325(53) Art. 40(2), p. 363–64(35) Art. 40(3), p. 364(38) Art. 41, p. 353, 360(24), 373(77), 388(118) Art. 48, p. 353

ICJ Rules of Court Art. 38(4), p. 363–64(35) Art. 42, p. 364(38) Art. 73, p. 353, 360(24) Art. 73(2), p. 363–64(35) Art. 74, p. 353, 360(24) Art. 74(3), p. 364(36), 367(50) Art. 74(4), p. 364(37) Art. 75, p. 353, 360(24) Art. 75(2), p. 397(145) ICJ case-law

Other case Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [I.C.J. Reports 1996(I), p. 22(35)], p. 388–9(118)



Application of the International Convention on the Elimination 589 of all Forms of Racial Discrimination (Georgia v. Russian Federation)

Sources of Law (cont.) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia) (Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 19], p. 388–9(118), 392(127) [I.C.J. Reports 1993, p. 22(46)], p. 397(145) LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, [I.C.J. Reports 1999 (I), p. 14–15(22)], p. 392(128) Judgment, [I.C.J. Reports 2001, p. 506(109)], p. 397(147) Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, [I.C.J. Reports 1991, p. 17(23)], p. 392(129) Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, [I.C.J. Reports 2003, p. 107(22)], p. 392(129) Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, [I.C.J. Reports 2007 (I), p. 11(32)], p. 392(129) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 128(43)], p. 397(145) Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), Judgment, [I.C.J. Reports 2005, p. 258(263)], p. 397(147) Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [I.C.J. Reports 1996(I), p. 24(48)], p. 397(145) Treaties

International Convention on the Elimination of All Forms of Racial Discrimination, p. 353(1), 354(2), 355(6), 356(12, 13), 357(20), 358(21), 359(22, 23), 360(24, 25), 362(33), 363(34), 365(44, 47), 365(54), 372(71, 72, 73), 374(79, 80), 375(81), 376(83), 378(86, 87, 88, 89), 379(90, 91), 380(92, 93, 94), 381(95, 96, 98), 382(99, 100, 101), 383(102, 103, 104, 105), 384(106, 107), 386(108, 109, 110, 111), 387(112, 113), 388(114, 115, 116, 117), 389(119, 120), 390(121, 122), 390–1(123), 391(125, 126), 392(127), 392(132), 394(134, 137), 395(141), 396(142, 144), 398(149) 1992 Agreement on the Principles of the Settlement of the Georgian-Ossetian Conflict of Georgia and the Russian Federation of 24 June 1992, p. 355(8, 9), 369(59)

590

Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation)

Sources of Law (cont.) 1994 Moscow Agreement on a Ceasefire and Separation of Forces by Georgia, the Abkhaz separatist forces and the Russian Federation of 14 May 1994, p. 355(8, 9) 1994 Agreement on the voluntary return of displaced persons between Georgia, Abkhazia, the Russian Federation and the UN of 4 April 1994, p. 369(60) 1993 Ceasefire Agreement of 27 July 1993, p. 369(60) 2008 Medvedev-Sarkozy Political Agreement between the Russian Federation and France of 12 August 2008, p. 371(67, 68), 372(69), 375(82), 394–5(138), 395(140) UN Resolution

Security Council Resolution 858(1993), p. 369(60)

Inter(national) legal references

Interim Measures of the European Court of Human Rights of 11 and 12 August 2008, p. 381(98)

Representation of Parties Georgia H.E. Ms. Tina Burjaliani Mr. James R. Crawford Mr. Payam Akhavan Mr. Paul S. Reichler

Russian Federation H.E. Mr. Roman Kolodkin H.E. Mr. Kirill Gevorgian Mr. Alain Pellet Mr. Andreas Zimmermann Mr. Samuel Wordsworth

APPLICATION OF THE INTERIM ACCORD OF 13 SEPTEMBER 1995 (the Former Yugoslav Republic of Macedonia v. Greece) Status: Case Pending as of 31 December 2010 General List No.: 142 Mean(s) and date of institution of the case: Application (17 November 2008) Statement of claim/question: the Yugoslav Republic of Macedonia requested the Court: “On the basis of the evidence and legal arguments presented in its written and oral pleadings, the Applicant requests the Court: (i) to reject the Respondent’s objections as to the jurisdiction of the Court and the admissibility of the Applicant’s claims; (ii) to adjudge and declare that the Respondent, through its State organs and agents, has violated its obligations under Article 11, paragraph 1, of the Interim Accord; and (iii) to order that the Respondent immediately take all necessary steps to comply with its obligations under Article 11, paragraph 1, of the Interim Accord, and to cease and desist from objecting in any way, whether directly or indirectly, to the Applicant’s membership of the North Atlantic Treaty Organization and/or of any other ‘international, multilateral and regional organizations and institutions’ of which the Respondent is a member, in circumstances where the Applicant is to be referred to in such organization or institution by the designation provided for in paragraph 2 of United Nations Security Council resolution 817 (1993).” Basis of jurisdiction invoked by the Applicant(s): Art. 36(1) of the ICJ Statute and Article 21(2) of the Interim Accord of 1995 between the former Yugoslav Republic of Macedonia and Greece.

592

Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v. Greece) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to) Total

Public sittings

17 November 2008 continues

Orders Date of Order and Authority

Content

20 January 2009 Court – President Higgins

Fixing of time-limits 20 July 2009 – Memorial of the FYR of Macedonia 20 January 2010 – Counter-Memorial of Greece

12 March 2010 Court – President Owada

Authorization of submission of a reply by the FYR of Macedonia and rejoinder by Greece 9 June 2010 – Reply of the FYR of Macedonia 27 October 2010 – Rejoinder of Greece

JURISDICTIONAL IMMUNITIES OF THE STATE (Germany v. Italy) Status: Case Pending as of 31 December 2010 General List No.: 143 Mean(s) and date of institution of the case: Application (23 December 2008) Statement of claim/question: “Germany prays the Court to adjudge and declare that the Italian Republic: 1. by allowing civil claims based on violations of international humanitarian law by the German Reich during World War II from September 1943 to May 1945, to be brought against the Federal Republic of Germany, committed violations of obligations under international law in that it has failed to respect the jurisdictional immunity which the Federal Republic of Germany enjoys under international law; 2. by taking measures of constraint against ‘Villa Vigoni’, German State property used for government non-commercial purposes, also committed violations of Germany’s jurisdictional immunity; 3. by declaring Greek judgments based on occurrences similar to those defined above in request No. 1 enforceable in Italy, committed a further breach of Germany’s jurisdictional immunity. Accordingly the Federal Republic of Germany prays the Court to adjudge and declare that: 4. the Italian Republic’s international responsibility is engaged; 5. the Italian Republic must, by means of its own choosing, take any and all steps to ensure that all the decisions of its courts and other judicial authorities infringing Germany’s sovereign immunity become unenforceable; 6. the Italian Republic must take any and all steps to ensure that in the future Italian courts do not entertain legal actions against Germany founded on the occurrences described in request No. 1 above”; Basis of jurisdiction invoked by the Applicant(s): Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957.

594

Jurisdictional Immunities of the State (Germany v. Italy) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to) Total

23 December 2008 continues

Counter-Claim

23 December 2008 to 6 July 2010

Public sittings

Orders Date of Order and Authority

Content

29 April 2009 Court – President Owada

Fixing of time-limits: 23 June 2009 – Memorial of Germany 23 December 2009 – Counter-Memorial of Italy

6 July 2010 Court – President Owada

Please refer Section B

Section B – Counter-Claim Official citation: Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. Date of order: 6 July 2010 Authoritative text: English Composition of the Court: Present: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, SepúlvedaAmor, Bennouna, Skotnikov, Cançado Trindade, Greenwood; Judge ad hoc Gaja; Registrar Couvreur. Text of the operative paragraph(s) (para. 35) THE COURT, (A) By thirteen votes to one, Finds that the counter-claim presented by Italy in its Counter-Memorial is inadmissible as such and does not form part of the current proceedings; IN FAVOUR: President Owada; Vice-President Tomka; Judges Koroma, Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Bennouna, Skotnikov, Greenwood; Judge ad hoc Gaja AGAINST: Judge Cançado Trindade

Jurisdictional Immunities of the State (Germany v. Italy)



595

(B) Unanimously, Authorizes Germany to submit a Reply and Italy to submit a Rejoinder and fixes the following dates as time-limits for the filing of these pleadings: For the Reply of Germany, 14 October 2010; For the Rejoinder of Italy, 14 January 2011; and Reserves the subsequent procedure for further decision. Declarations/Opinions Joint Declaration

Judges Keith and Greenwood

Dissenting Opinion

Judge Cançado Trindade

Declaration

Judge ad hoc Gaja

Sources of Law ICJ Statute

Art. 36(1), para. 3

ICJ Rules of Court

Art. 45(2), para. 12 Art. 80(1), paras. 4, 5, 16, 31, 33 Art. 80(2), para. 13

ICJ case-law

Current case Order of 29 April 2009, paras. 2, 3 Other Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia) (Serbia and Montenegro), Counter-Claims, Order of 17 December 1997, [I.C.J. Reports 1997, p. 256(27)], paras. 13, 15 Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claims, Order of 10 March 1998, [I.C.J. Reports 1998, p. 203(33)], para. 14 Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, [I.C.J. Reports 2001, p. 678(35)], para. 14 Certain Property (Liechtenstein v. Germany) Preliminary Objections, [Judgment, I.C.J. Reports 2005, p. 25(48)], para. 18 Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, [I.C.J. Reports 1960, p. 35], para. 23

596

Jurisdictional Immunities of the State (Germany v. Italy)

Sources of Law (cont.) Treaties

1947 Peace Treaty of 1947, paras. 8, 24, 25, 27 1961 Agreements between Germany and Italy, para. 24, 25, 28 1963 Settlement of certain property-related, economic and financial questions of 16 September 1963, para. 9 1963 Agreement on the Compensation for Italian nationals subjected to National-Socialist measures of persecution of 31 July 1963, para. 9 1975 European Convention for the Peaceful Settlement of Disputes of 29 April 1957, paras. 1, 17, 19, 23, 24

Inter(national) legal references

German Federal Law of 2 August 2000, paras. 10, 24, 29 2008 Corte di Cassazione Order of 29 May 2008, para. 11

INTERPRETATION OF THE JUDGMENT OF 15 JUNE 1962 IN THE CASE CONCERNING THE TEMPLE OF PREAH VIHEAR (Cambodia v. Thailand) General List No. 144 Mean and date of institution of the Case: Application (28 April 2011)

QUESTIONS RELATING TO THE OBLIGATION TO PROSECUTE OR EXTRADITE (Belgium v. Senegal) Status: Case Pending as of 31 December 2010 General List No.: 144 Mean(s) and date of institution of the case: Application (19 February 2009) Statement of claim/question: Belgium requests the Court to adjudge and declare: • the Court has jurisdiction to entertain the dispute between the Kingdom of Belgium and the Republic of Senegal regarding Senegal’s compliance with its obligation to prosecute Mr. H. Habré or to extradite him to Belgium for the purposes of criminal proceedings; • Belgium’s claim is admissible; • the Republic of Senegal is obliged to bring criminal proceedings against • Mr. H. Habré for acts including crimes of torture and crimes against humanity • which are alleged against him as perpetrator, co‑perpetrator or accomplice; • failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for these crimes before the Belgian courts. Request for Provisional Measures: Belgium asked the Court to indicate: “to indicate, pending a final judgment on the merits, provisional measures requiring Senegal to take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”; Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) of the ICJ Statute and UN Convention against Torture of 10 December 1984.



Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

599

Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to)

Public sittings

Total

19 February 2009 to continues

Provisional Measures

19 February 2009 to 28 May 2009 (3 months / 9 days)

6, 7, 8 April 2009

Orders Date of Order and Authority

Content

28 May 2009

Please refer Section B

9 July 2009 Court – President Owada

Fixing of time-limits: 9 July 2010 – Memorial of Belgium 11 July 2011 – Counter-Memorial of Senegal

Section B – Provisional Measures Official citation: Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. xx Date of order: 28 May 2009 Authoritative text: French Composition of the Court: Present: President Owada; Judges Shi, Koroma, AlKhasawneh, Simma, Abraham, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judges ad hoc Sur, Kirsch; Registrar Couvreur. Text of the operative paragraph(s) (para. 76) THE COURT, By thirteen votes to one, Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.

600

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Simma, Abraham, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood; Judges ad hoc Sur, Kirsch AGAINST: Judge Cançado Trindade. Declarations/Opinions Joint Declaration

Judges Koroma and Yusuf

Joint Separate Opinion

Judges Al-Khasawneh and Skotnikov

Dissenting Opinion

Judge Cançado Trindade

Separate Opinion

Judge ad hoc Sur

Sources of Law ICJ Statute

Art. 31(3), para. 20 Art. 36(2), paras. 2, 41, 54 Art. 38, para. 16 Art. 40(2), para. 16 Art. 40(3), para. 18 Art. 41, p. 1, paras. 11, 56, 76 Art. 48, p. 1

ICJ Rules of Court

Art. 42, para. 18 Art. 73, p. 1, 11 Art. 73(2), para. 16 Art. 74, p. 1, 11 Art. 74(3), paras. 17, 21 Art. 74(4), p. 364(37) Art. 75, para. 11 Art. 75(3), para. 75

ICJ case-law

South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, [I.C.J. Reports 1963, p. 344], para. 46 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Order of 19 August 1988, [I.C.J. Reports 1987, p. 95(66)], para. 46 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment [I.C.J. Reports 1998, p. 130(43)], para. 46



Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

601

Sources of Law (cont.) Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia) (Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, [I.C.J. Reports 1993, p. 19(34)], para. 56 Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, [I.C.J. Reports 1996(I), p. 22(35)], para. 56 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, [I.C.J. Reports 2008, p. 388–389(118)], paras. 56, 62 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, [I.C.J. Reports 1991, p. 17(23)], para. 62 Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, [I.C.J. Reports 2003, p. 107(22)], para. 62 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, [I.C.J. Reports 2007 (I), p. 11(32)], para. 62 Treaties

1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, paras. 1, 2, 8, 9, 23, 28, 36, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 58, 59

Inter(national) legal 2000 Chambre d’accusation of the Dakar Court of Appeal on references 4 July 2000, para. 3 2005 Chambre d’accusation of the Dakar Court of Appeal decision of 25 November 2005, paras. 3, 26 2005 Belgium Note Verbale dated 23 December 2005, para. 47 2006 Belgium NV dated 11 January 2006, paras. 47, 50 2006 Belgium Note Verbale to Senegal of 20 June 2006, paras. 44, 45, 51, 52 2006 Decision of the Summit of African Union Heads of State and Government of 2 July 2006, para. 6 2007 Belgium Note Verbale dated 8 May 2007, paras. 44, 51, 52

Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland) Status: Case Pending as of 31 December 2010 General List No.: 145 Mean(s) and date of institution of the case: Application (21 December 2009) Statement of claim/question: “Belgium respectfully requests the Court to adjudge and declare that: – the Court has jurisdiction to entertain the dispute between the Kingdom of Belgium and the Swiss Confederation concerning the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, and of the rules of general international law governing the exercise by States of their authority, in particular in judicial matters; – Belgium’s claim is admissible; – Switzerland, by virtue of the decision of its courts to hold that the future judgment in Belgium on the contractual and non-contractual liability of SAirGroup and SAirLines to the Belgian State and to Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) will not be recognized in Switzerland in the SAirGroup and SAirLines debt-scheduling proceedings, is breaching the Lugano Convention, in particular : Articles 1, second paragraph, provision (2); 16 (5); 26, first paragraph; and 28, thereof; – Switzerland, by refusing to stay the proceedings pursuant to its municipal law in the disputes between, on the one hand, the Belgian State and ZephyrFin, S.F.P. and S.F.I. (since merged, having become SFPI) and, on the other, the liquidation estates (masses) of SAirGroup and SAirLines, companies in debt-restructuring liquidation (liquidation concordataire), specifically on the ground that the future judgment in Belgium on the contractual and noncontractual liability of SAir-Group and SAirLines to the Belgian State and Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) will not be recognized in Switzerland in the SAirGroup and SAirLines debt-scheduling proceedings, is breaching the rule of general international law that all State authority, in particular in judicial matters, must be exercised reasonably;



Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland)

603

– Switzerland, by virtue of the refusal by its judicial authorities to stay the proceedings in the disputes between, on the one hand, the Belgian State and Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) and, on the other, the liquidation estates of SAirGroup and SAirLines, companies in debt restructuring liquidation, pending the conclusion of the proceedings currently taking place in the Belgian courts concerning the contractual and noncontractual liability of SAirGroup and SAirLines to the first-cited parties, is violating the Lugano Convention, in particular: Articles 1, second paragraph, provision (2); 17; 21; and 22, thereof; as well as Article 1 of Protocol No. 2 on the uniform interpretation of the Lugano Convention; – Switzerland’s international responsibility has been engaged; – Switzerland shall take all appropriate steps to enable the judgment by the Belgian courts on the contractual and non-contractual liability of SAirGroup and SAirLines to the Belgian State and Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) to be recognized in Switzerland in accordance with the Lugano Convention for purposes of the debt-scheduling proceedings for SAir-Lines and SAirGroup; – Switzerland shall take all appropriate steps to ensure that the Swiss courts stay their proceedings in the disputes between, on the one hand, the Belgian State and Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) and, on the other, the liquidation estates of SAirGroup and SAirLines, companies in debt-restructuring liquidation, pending the conclusion of the proceedings currently taking place in the Belgian courts concerning the contractual and non-contractual liability of SAirGroup and SAirLines to the first-cited parties.” Basis of jurisdiction invoked by the Applicant(s): Art. 36(2) (a) and (b) of the ICJ Statute. Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

21 December 2009 continues

Public sittings

604

Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland)

Orders Date of Order and Authority

Content

4 February 2010 Court – President Owada

Fixing of time-limits 23 August 2010 – Memorial of Belgium 25 April 2011 – Counter-Memorial of Switzerland

10 August 2010 President Owada

Extension of time-limits 23 November 2010 – Memorial of Belgium 24 October 2011 – Counter-Memorial of Switzerland

CERTAIN QUESTIONS CONCERNING DIPLOMATIC RELATIONS (Honduras v. Brazil) General List No.: 147 Mean(s) and date of institution of the case: Application (28 October 2009) Statement of claim/question: Honduras asks the Court to adjudge and declare: “that it has jurisdiction to adjudicate the dispute between Honduras and Brazil and that the Application of Honduras is admissible . . . Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so. Just as Brazil rightly demands that the Honduran authorities guarantee the security and inviolability of the Mission premises, Honduras demands that Brazil’s diplomatic staff stationed in Tegucigalpa devote themselves exclusively to the proper functions of the Mission and not to actions constituting interference in the internal affairs of another State.” Basis of jurisdiction invoked by the Applicant(s): Article 36(1) of the ICJ Statute read with Article XXXI of the American Treaty on Pacific Settlement, Pact of Bogota of 30 April 1948. Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

28 October 2009 to 12 May 2010

Order Date of Order and Authority 12 May 2010 President Owada

Content Removal of the case from the List.

WHALING IN THE ANTARCTIC (Australia v. Japan) Status: Case pending as of 31 December 2010 General List No.: 148 Mean(s) and date of institution of the case: Application (31 May 2010) Statement of claim/question: Australia requests the Court to adjudge and declare that Japan is in breach of its international obligations in implementing the JARPA II program in the Southern Ocean . . . “In addition, Australia requests the Court to order that Japan: (a) cease implementation of JARPA II; (b) revoke any authorizations, permits or licences allowing the activities which are the subject of this application to be undertaken; and (c) provide assurances and guarantees that it will not take any further action under the JARPA II or any similar program until such program has been brought into conformity with its obligations under international law. Basis of jurisdiction invoked by the Applicant(s): Article 36(2) of the ICJ Statute, declaration of Australia of 22 March 2002 and Japan of 9 July 2007. Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

Public sittings

31 May 2010 continues

Orders Date of Order and Authority 13 July 2010 Court – Vice-President (Acting President) Tomka

Content Fixing of time-limits: 9 May 2011 – Memorial of Australia 9 March 2012 – Counter-Memorial of Japan

FRONTIER DISPUTE (Burkina Faso/Niger) Status: Case Pending as of 31 December 2010 General List No.: 149 Mean(s) and date of institution of the case: Special Agreement (20 July 2010) Statement of claim/question: Both parties requested the Court to: “1. determine the course of the boundary between the two countries in the sector from the astronomic marker of Tong-Tong (latitude 14°25'04"N; longitude 00°12'47"E) to the beginning of the Botou bend (latitude 12°36'18"N; longitude 01°52'07"E); 2. take cognizance of the Parties’ agreement on the results of the work of the Joint Technical Commission on demarcation of the Burkina Faso-Niger boundary with regard to the following sectors: (a) the sector from the heights of N’Gouma to the astronomic marker of Tong-Tong; (b) the sector from the beginning of the Botou bend to the River Mekrou.” Basis of jurisdiction: Special Agreement of 24 February 2009 between Burkina Faso and Niger (entered into force on 20 November 2009). Section A – Procedural and Organizational Aspects Duration and Public sittings Duration (from – to) Total

20 July 2010 continues

Public sittings

608

Frontier Dispute (Burkina Faso/Niger)

Orders Date of Order and Authority 14 September 2010 Court – President Owada

Content Fixing of time-limits: 20 April 2011 – Memorial by each Party 20 January 2012 – Counter-Memorial by each Party

CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA IN THE BORDER AREA (Costa Rica v. Nicaragua) Status: Case Pending as of 31 December 2010 General List No.: 150 Mean(s) and date of institution of the case: Application (18 November 2010) Statement of claim/question: “. . . Costa Rica requests the Court to adjudge and declare that Nicaragua is in breach of its international obligations as referred to in paragraph 1 of this Application as regards the incursion into and occupation of Costa Rican territory, the serious damage inflicted to its protected rainforests and wetlands, and the damage intended to the Colorado River, wetlands and protected ecosystems, as well as the dredging and canalization activities being carried out by Nicaragua on the San Juan River. In particular the Court is requested to adjudge and declare that, by its conduct, Nicaragua has breached: (a) the territory of the Republic of Costa Rica, as agreed and delimited by the 1858 Treaty of Limits, the Cleveland Award and the first and second Alexander Awards; (b) the fundamental principles of territorial integrity and the prohibition of use of force under the Charter of the United Nations and the Charter of the Organization of American States; (c) the obligation imposed upon Nicaragua by Article IX of the 1858 Treaty of Limits not to use the San Juan River to carry out hostile acts; (d) the obligation not to damage Costa Rican territory; (e) the obligation not to artificially channel the San Juan River away from its natural watercourse without the consent of Costa Rica; ( f ) the obligation not to prohibit the navigation on the San Juan River by Costa Rican nationals; (g) the obligation not to dredge the San Juan River if

610

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

this causes damage to Costa Rican territory (including the Colorado River), in accordance with the 1888 Cleveland Award; (h) the obligations under the Ramsar Convention on Wetlands; (i) the obligation not to aggravate and extend the dispute by adopting measures against Costa Rica, including the expansion of the invaded and occupied Costa Rican territory or by adopting any further measure or carrying out any further actions that would infringe Costa Rica’s territorial integrity under international law.” Costa Rica also requested the Court to “determine the reparation which must be made by Nicaragua, in particular in relation to any measures of the kind referred to above. Request for Provisional Measures by Costa Rica (18 November 2010) “Costa Rica requests the Court to order the following provisional measures: A. Pending the determination of this case on the merits, Nicaragua shall not, in the area comprising the entirety of Isla Portillos, that is to say, across the right bank of the San Juan river and between the banks of the Laguna Los Portillos (also known as Harbor Head Lagoon) and the Taura river (“the relevant area”): (1) station any of its troops or other personnel; (2) engage in the construction or enlargement of a canal; (3) fell trees or remove vegetation or soil; (4) dump sediment. B. Pending the determination of this case on the merits, Nicaragua shall suspend its ongoing dredging programme in the River San Juan adjacent to the relevant area. C. Pending the determination of this case on the merits, Nicaragua shall refrain from any other action which might prejudice the rights of Costa Rica, or which may aggravate or extend the dispute before the Court.” Basis of jurisdiction invoked by the Applicant(s): Art. XXXI of the American Treaty on Pacific Settlement, Bogota of 30 April 1948, declarations of Costa Rica under Article 36(2) of the ICJ Statute by Costa Rica of 20 February 1973 and by Nicaragua of 24 September 1929 (as amended on 23 October 2001).



Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Section A – Procedural and Organizational Aspects

Duration and Public sittings Duration (from – to) Total

18 November 2010 continues (years/ months / days)

Provisional Measures

18 November 2010 to continues

Public sittings

611

International Court of Justice Advisory Opinions

LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY General List No.: 131 Question submitted for the advisory opinion: (8 December 2003) “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the tules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions? Source: General Assembly Resolution A/ES-10/14 of 8 December 2003 Section A – Procedural and Organizational Aspects Official citation: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136 Duration of the proceedings: 10 December 2003 to 9 July 2004 Authoritative text: French Filing of written statements: Guinea, Saudi Arabia, League of Arab States, Egypt, Cameroon, Russian Federation, Australia, Palestine, United Nations, Jordan, Kuwait, Lebanon, Canada, Syria, Switzerland, Israel, Yemen, United States of America, morocco, Indoneisa, Organsiation of the Islamic Conference, France, Italy, Sudan, South Africa, Germany, Japan, Norway, United Kingdom, Pakistan, Czech Republic, Greece, Ireland on its own behalf, Ireland on behalf of the European Union, Cyprus, Brazil, Namibia, Malta, Malaysia, Netherlands, Cuba, Sweden, Spain, Belgium, Palau, Federated States of Micronesia, Marshall Islands, Senegal, Democratic People’s Republic of Korea. Oral statements during public sittings: 23–25 February 2004. Palestine (H.E. Mr. Nasser Al-Kidwa, Ms. Stephanie Koury, Mr. James Crawford, Mr. Georges Abi-Saab, Mr. Vaughan Lowe, Mr. Jean Salmon); South Africa (H.E. Mr. Aziz Pahad, Judge M.R.W. Madlanga); Algeria (Mr. Ahmed Laraba); Saudi

616

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Arabia (H.E. Mr. Fawzi A. Shobokshi); Bangladesh (H.E. Mr. Liaquat Ali Choudhury); Belize (Me Jean-Marc Sorel); Cuba (H.E. Mr. Abelardo Moreno Fernández); Indonesia (H.E. Mr. Mohammmad Jusuf); Jordan (H.R.H. Ambassador Zeid Ra’ad Zeid Al-Hussein, Sir Arthur Watts); Madagascar (H.E. Mr. Alfred Rambeloson); Malaysia (H.E. Datuk Seri Syed Hamid Albar); Senegal (H.E. Mr. Saliou Cissé); Sudan (H.E. Mr. Abuelgasim A. Idris); League of Arab States (Mr. Michael Bothe); Organisation of the Islamic Conference (H.E. Mr. Abdelouahed Belkeziz, Ms. Monique Chemillier-Gendreau) Orders Date of Order and Authority

Content

19 December 2003 Court – President Shi

Decision that UN and the Member States and Palestine are likely to be able to furnish information on the questions submitted for the advisory opinion and fixing of time-limits: 30 January 2004 – Filing of written statements relating to the questions in accordance with Article 66, paragraph 2, of the ICJ Statute 23 February 2004 – Opening of Public Hearing

30 January 2004 Court – President Shi

Please refer Section B below.

Section B – Order of 30 January 2004 Official citation: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 30 January 2004, I.C.J. Reports 2004, p. 3 Date of Order: 30 January 2004 Authoritative text: English Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Owada, Simma, Tomka; Registrar Couvreur. Text of the operative paragraph(s) (p. 5) THE COURT, By thirteen votes to one, Decides that the matters brought to the attention of the Court by the letter of 31 December 2003 from the Government of Israel, and the further confidential



Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

617

letter of 15 January 2004 from that Government, are not such as to preclude Judge Elaraby from participating in the present case. IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Owada, Simma, Tomka AGAINST: Judge Buergenthal Sources of Law ICJ Statute

Art. 17, p. 3 Art. 17(2), p. 5(6, 7) Art. 24, p. 3 Art. 48, p. 3 Art. 65, p. 3 Art. 66(2), p. 4 Art. 68, p. 3 Art. 31(5), p. 13

ICJ Rules of Court

Art. 34(2), p. 3, 4(2, 3) Art. 102(1), p. 3 3(2), p. 13

UN Resolution

GA Resolution A/RES/ES-10/14, p. 3, 4(2),

ICJ case-law

Order of 19 December 2003, p. 3, 4(1), Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [I.C.J. Reports 1971, p. 18(9)], p. 5(6)

Treaties

1979 Israel-Egypt Peace Treaty of 1979, p. 4(4),

Inter(national)legal references

Interview of Judge Elaraby in an Egyptian Newspaper in August 2001

Declarations/Opinions Dissenting Opinion

Judge Buergenthal

Section C – Advisory Opinion Official citation: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136

618

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Date of Judgment: 9 July 2004 Authoritative text: French Composition of the Court: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AlKhasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka; Registrar Couvreur. Headnotes: Jurisdiction of the Court to give the advisory opinion requested. Article 65, paragraph I, of the Statute – Article 96, paragraph I, of the Charter – Power of General Assembly to request advisory opinions – Activi­ties of Assembly. Events leading to the adoption of General Assembly resolution ES-10/14 requesting the advisory opinion. Contention that General Assembly acted ultra vires under the Charter Article 12, paragraph 1, and Article 24 of the Charter – United Nations prac­tice concerning the interpretation of Article 12, paragraph I, of Charter – Gen­eral Assembly did not exceed its competence. Request for opinion adopted by the Tenth Emergency Special Session of the General Assembly – Session convened pursuant to resolution 377 A (V) (“Uniting for Peace”) – Conditions set by that resolution – Regularity of procedure followed. Alleged lack of clarity of the terms of the question – Purportedly abstract nature of the question – Political aspects of the question – Motives said to have inspired the request and opinion’s possible implications – “Legal” nature of question unaffected. Court having jurisdiction to give advisory opinion requested. Discretionary power of Court to decide whether it should give an opinion. Article 65, paragraph I, of Statute – Relevance of lack of consent of a State concerned – Question cannot be regarded only as a bilateral matter between Israel and Palestine but is directly of concern to the United Nations – Possible effects of opinion on a political, negotiated solution to the Israeli-Palestinian conflict – Question representing only one aspect of Israeli-Palestinian conflict – Sufficiency of information and evidence available to Court – Useful purpose of opinion – Nullus commodum capere potest de sua injuria propria – Opin­ion to be given to the General Assembly, not to a specific State or entity. No “compelling reason” for Court to use its discretionary power not to give an advisory opinion. “Legal consequences” of the construction of a wall in the Occupied Palestin­ian Territory, including in and around East Jerusalem – Scope of question posed – Request for opinion limited to the legal consequences of the construc­tion of



Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

619

those parts of the wall situated in Occupied Palestinian Territory – Use of the term “wall”. Historical background. Description of the wall. Applicable law. United Nations Charter – General Assembly resolution 2625 (XXV) – Illegality of any territorial acquisition resulting from the threat or use of force ­Right of peoples to self-determination. International humanitarian law – Regulations annexed to the Fourth Hague Convention of 1907 – Fourth Geneva Convention of 1949 – Applicability of Fourth Geneva Convention in the Occupied Palestinian Territory – Human rights law – International Covenant on Civil and Political Rights – Interna­tional Covenant on Economic, Social and Cultural Rights – Convention on the Rights of the Child – Relationship between international humanitarian law and human rights law – Applicability of human rights instruments outside national territory – Applicability of those instruments in the Occupied Palestinian Ter­ritory. Settlements established by Israel in breach of international law in the Occu­ pied Palestinian Territtory – Construction of the wall and its associated regime create a “fail accompli” on the ground that could well become permanent ­Risk of situation tantamount to de facto annexation – Construction of the wall severely impedes the exercise by the Palestinian people of its right to self ­determination and is therefore a breach of Israel’s obligation to respect that right. Applicable provisions of international humanitarian law and human rights instruments relevant to the present case – Destruction and requisition of prop­ erties – Restrictions on freedom of movement of inhabitants of the Occupied Palestinian Territory – Impediments to the exercise by those concerned of the right to work, to health, to education and to an adequate standard of living ­Demographic changes in the Occupied Palestinian Territory – Provisions of international humanitarian law enabling account to be taken of military exigen­ cies – Clauses in human rights instruments qualifying rights guaranteed or pro­ viding for derogation – Construction of the wall and its associated regime cannot be justified by military exigencies or by the requirements of national security or public order – Breach by Israel of various of its obligations under the applicable provisions of international humanitarian law and human rights instruments. Self-defence – Article 51 of the Charter – Attacks against Israel not imput­ able to a foreign State – Threat invoked to justify the construction of the wall originating within a territory over which Israel exercises control – Article 51 not relevant in the present case. State of necessity – Customary international law – Conditions – Con­struction of the wall not the only means to safeguard Israel’s interests against the peril invoked.

620

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Construction of the wall and its associated regime are contrary to interna­ tional law. Legal consequences of the violation by Israel of its obligations. Israel’s international responsibility – Israel obliged to comply with the inter­ national obligations it has breached by the construction of the wall – Israel obliged to put an end to the violation of its international obligations – Obliga­tion to cease forthwith the works of construction of the wall, to dismantle it forthwith and to repeal or render ineffective forthwith the legislative and regu­latory acts relating to its construction, save where relevant for compliance by Israel with its obligation to make reparation for the damage caused – Israel obliged to make reparation for the damage caused to all natural or legal persons affected by construction of the wall. Legal consequences for States other than Israel – Erga omnes character of certain obligations violated by Israel – Obligation for all States not to recog­nise the illegal situation resulting from construction of the wall and not to ref/del’ aid or assistance in maintaining the situation created by such construc­tion – Obligation for all States, while respecting the Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end – Obligation for all States parties Lo the Fourth Geneva Convention, while respecting the Charter and international law, to ensure com­pliance by Israel with international humanitarian law as embodied in that Con­vention – Need for the United Nations, and especially the General Assembly and the Security Council, to consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and its associated regime, taking due account of the Advisory Opinion. Construction of the wall must be placed in a more general context – Obliga­ tion of Israel and Palestine scrupulously to observe international humanitarian law – Implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973) – “Roadmap” – Need for efforts to be encouraged with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian State, with peace and security for all in the region.



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621

Final paragraph(s) (p. 163, para. 201) the COURT, (1) Unanimously, Finds that it has jurisdiction to give the advisory opinion requested; (2) By fourteen votes to one, Decides to comply with the request for an advisory opinion; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka AGAINST: Judge Buergenthal (3) Replies in the following manner to the question put by the General Assembly: A. By fourteen votes to one, The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Elaraby, Owada, Simma, Tomka AGAINST: Judge Buergenthal B. By fourteen votes to one, Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of con­struction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AI-Khasawneh, Elaraby, Owada, Simma, Tomka AGAINST: Judge Buergenthal

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C. By fourteen votes to one, Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AI-Khasawneh, Elaraby, Owada, Simma, Tomka AGAINST: Judge Buergenthal D. By thirteen votes to two, All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assis­ tance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and inter­national law, to ensure compliance by Israel with international humani­tarian’law as embodied in that Convention; IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Rezek, AI-Khasawneh, Elaraby, Owada, Simma, Tomka AGAINST: Judges Kooijmans, Buergenthal E. By fourteen votes to one, The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion, IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, AI-Khasawneh, Elaraby, Owada, Simma, Tomka AGAINST: Judge Buergenthal Declarations/Opinions Separate Opinions

Judges Koroma, Higgins, Kooijmans, Al-Khasawneh

Declaration

Judge Buergenthal

Separate Opinions

Judges Elaraby and Owada



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623

Sources of Law League of Nations

Art. 22(4), p. 165(70)

UN Charter

Art. 10, p. 145(17) Art. 11(2), p. 145(17) Art. 12(1), p. 148(25), 150(28) Art. 12, p. 148–49(26), 149(27) Art. 14, p. 148(26) Art. 2(4), p. 171(87) Art. 24, p. 148(26) Art. 51, p. 194(138, 139) Art. 96(1), p. 145(15), 152(36) Art. 96, p. 139–140(1) UN Charter, p. 139(1), 171(86, 88), 182(117), 199(156), 200(161),

ICJ Statute

Art. 65(1), p. 144(14), 152(36), 156(44) Art. 66, p. 142(6) Art. 66(2), p. 141(4) Art. 66(4), p. 141(4)

ICJ Rules of Court

Art. 34(2), p. 142(8) Art. 105(4), p. 141–142(5) Art. 106, p. 142(11)

PCIJ case-law

Chorzów Factory, [Judgment No. 13, 1928, P.C.I.J., Series A, No. 17947)], p. 198(152) Exchange of Greek and Turkey Populations, Advisory Opinion, 1925, [P.C.I.J., Series B, No. 10, p.17], p. 152–53(36) Jaworzina, Advisory Opinion, 1923, [P.C.I.J., Series B, No. 8], p. 153–54(38) Statute of Eastern Carelia, Advisory Opinion, 1923, [P.C.I.J., Series B, No. 4], p. 156–57(44), 161(56),

ICJ case-law

Current Order of 19 December 2003, p. 141 (4,5), 142(7) Order of 30 January 2004, p. 142(8) Previous Admissibility of Hearings of Petitioners by the Committee on South West Africa, I.C.J. Reports 1956, p. 25], p. 153–54(38) Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, [I.C.J. Reports 1982, p. 325], p. 153–54(38) Application for Review of UNAT Judgment No. 158, [I.C.J. Reports 1973, p. 172(14)], p. 155(41) Application for Review of UNAT Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, [I.C.J. Reports 1982, p. 333–334(21)], p. 144(14)

624

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Sources of Law (cont.) Barcelona Traction, Light and Power Company, Limited, Second Phase, [I.C.J. Reports 1970, p. 32(33], p. 199(155) Certain expenses of the United Nations (Art. 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [I.C.J. Reports 1962, p. 163], p. 148(26), 156(44), Certain expenses of the United Nations (Art. 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [I.C.J. Reports 1962, p. 157–62], p. 153–54(38), 155(41), Competence of the General Assembly for the Admission of a State to the United Nations, [Advisory Opinion: I.C.J. Reports 1950], p. 155(41) Conditions of Admission of a State to Membership in the United Nations (Art. 4 of Charter), I.C.J. Reports 1947–48, p. 61], p. 154(40), 155(41), Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [I. C. J. Reports 1999, p. 62], p. 156(44) East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 102(90)], p. 172(89), 199(156), Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 51], p. 154(40) Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, [I.C.J. Reports 1997, p. 40(51)], p. 194–95(140) Haya de la Torre Case, Judgment of June 13th, [1951: I.C.J. Reports, p. 82], p. 197(150) International Status of South West Africa, Advisory Opinion: [I.C.J. Reports 1950, p. 128], p. 165(70), Interpretation of Peace Treaties, Advisory Opinion, [I.C.J. Reports 1950, p. 70], p. 145(16), 156(44), 157–58(47), p. 155– 56(55), 161(56), Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, [I.C.J. Reports 1980, p. 87(33)], p. 155(41) Kasikili/Sedudu Island (Botswana/Namibia), [I.C.J. Reports 1999 (II), p. 1059 (18)], p. 174(94) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [I.C.J. Reports 1971, p.22(20)], p. 152(35), 155–55(40), 158(48), 162(60), 171–72(88)



Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

625

Sources of Law (cont.) Legality of the Threat or Use of Nuclear Weapons, [I.C.J. Reports 1996(I), p. 232(10)], p. 144(13), 145(16), 155(51), 156(44), 163(61), 199(157), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [I.C.J. Reports 1996, p. 234(13)], p. 153–54(38), 154(40), 159(51), 172(89), 177(105) Legality of the Use by a State of Nuclear Weapons in Armed Conflict, [I. C. J. Reports 1996(I), p. 75(19)], p. 156(44) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p.14], p. 171(87), 197(150) Oil Platforms (Islamic Republic of Iran v. United States of America), [Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 812(23)], p. 174(94) Reservations to the Convention on Genocide, [I.C.J. Reports 1951, p. 15], p. 162(60) Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), Judgment [I.C.J. Reports 2002, p. 645(37)], p. 174(94) United States Diplomatic and Consular Staff in Tehran, [I.C.J. Reports 1980, p. 44(95)], p. 197(150) Western Sahara, Advisory Opinion, [I.C.J. Reports 1975, p. 18(15)], p. 153(37), 157–58(47), 159–60(51), 161(56), 162–63(60), 171–72(88) UN resolutions

General Assembly 56/60, p. 176(98) 58/97, p. 176(98) 181 (II) of 29 November 1947, p. 139(1), 188(129), 200(162), 181(II) of 29 November 1947, p. 165(71) 377 A (V)), p. 145(19), 150(29, 30), 1955 (XV) of 1963, p. 149(27) 1600 (XVI) of 1963, p. 149(27) 1913 (XVIII), p. 149(27) 2625 (XXV) of 24 October 1970, p. 171(87, 88), 199(156) ES-10/2 of 25 April 1997, p. 145(17), 145–46(19), 151(31), 194(138) 57/107 of 3 December 2002, p. 158–59(49) ES-10/13 of 21 October 2003, p. 139(1), 147(21, 22)

626

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Sources of Law (cont.) A/ES-10/249.2 of 2 December 2003, p. 147–48(23) ES-10/14 of 8 December 2003, p. 139(1), 141(3), 145(18), 147–48(23), 148(24, 25), 150(28), 156(42), 164(66) 58/163 of 22 December 2003, p. 182–83(118) Security Council 242 (1967) of 22 November 1967, p. 139(1), 166(74), 182(117), 200–201(162) 338 (1973) of 22 October 1973, p. 139(1), 200–201(162) 267 (1969) of 3 July 1969, p. 139(1) 298 (1971) of 25 September 1971, p. 139(1), 166(74) 446 (1979) of 22 March 1979, p. 139(1), 176(99) 452 (1979) of 20 July 1979, p. 139(1) 465 (1980) of 1 March 1980, p. 139(1) 476 (1980) of 30 June 1980, p. 139(1) 478 (1980) of 20 August 1980, p. 139(1), 166–67(75) 904 (1994) of 18 March 1994, p. 139(1) 1073 (1996) of 28 September 1996, p. 139(1) 1397 (2002) of 12 March 2002, p. 139(1) 1515 (2003) of 19 November 2003, p. 139(1), 147(22), 150(29), 160(53), 200–201(162) S/1997/199 and S/PV.3747 (draft) of 7 March 1997, p. 145(19) S/1997/241 and S/PV.3756 (draft) of 21 March 1997, p. 145(19) S/PV.1841 (draft) of 14 October 2003, p. 146(20) S/PV.4842 (draft) of 14 October 2003, p. 146(20) 62 (1948) of 16 November 1948, p. 166(72) 237(1967), p. 176(99) 271(1969), p. 176(99) 681(1990), p. 176(99) 799(1992) of 18 December 1992, p. 176(99) 904(1994) of 18 March 1994, p. 176(99) 446(1979) of 22 March 1979, 183–84(120) 452 (1979) of 20 July 1979, p. 183–84(120) 465(1980) of 1 March 1980, p. 183–84(120)



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627

Sources of Law (cont.) 1368(2001), p. 194(138, 139) 1373(2001), p. 194(138, 139) UN Commission on Human Rights resolutions

1994/41 of 4 March 1994, p. 67(10.4)

Treaties

1878 Treaty of Berlin of 13 July 1878, p. 188(129)

1993/2 A, p. 189–90(133) 1907 Hague Convention Respecting the Laws and Customs of War on Land of 18 October 1907, p. 139–140(1), 167(78), 172(89), 174–75(95), 176–77(100), 185(124), 189(132), 192(135) 1928 Anglo-Transjordanian Treaty of 20 February 1928, p. 165(70) 1949 Fourth Geneva Convention, p. 139–140(1), 172(89), 173(90), 173(91, 92, 93), 174(95), 175(96, 97), 176(98, 99), 176–77(100), 177(101), 183(120), 185(125, 126), 189(132), 192(132), 196(145, 146), 199(158), 201–2(163) 1949 Agreement between Jordan and Israel of 3 April 1949, p. 166(72), 188–89(129) 1949 Four Conventions, p. 173(92) 1966 International Covenant on Economic, Social and Cultural Rights, p. 171–72(88), 177(102, 103), 178(107), 180(112), 189(130), 191–92(134, 136), 1966 International Covenant on Civil and Political Rights, p. 171–72(88), 177(103, 105), 178(106, 107, 108), 179(109, 110), 180(111, 112), 187(127), 188(128, 129), 192(135, 136), 1969 Vienna Convention on Law of Treaties of 23 May 1969, p. 174(94) 1977 Additional Protocol I to the Geneva Conventions, p. 139– 140(1) 1989 Convention on the Rights of Child of 20 November 1989, p. 178(107), 181(113), 189(131), 191–92(134) 1994 Peace Treaty between Israel and Jordan of 26 October 1994, p. 167(76), 188–89(129) 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995, p. 182–83(118)

UN reports/ Documents

Security Council document, S/PV.4841, p. 182(116)

ILC Yearbook

ILC Yearbook 1973, [Vol. II, p. 193], p. 87(62)

GA document A/ES-10/PV.23, p. 182(116) Art. 25 of the ILC’s Article on Responsibility of States for Internationally Wrongful Acts, p. 194–95(140)

628

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Sources of Law (cont.) Others

Declaration of the Conference of High Contracting Parties of 5 December 2001, p. 139–140(1) Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian Territory occupied by Israel since 1967 of 8 September 2003, p. 139–140(1) Letter from the Permanent Representative of Qatar to the UN Secretary-General, A/ES-101/2 of 22 April 1997, p. 145–46(19) Letter of Chairman of the Arab Group dated 9 October 2003, p. 146(20) Letter of Permanent Representative of Syria to the UN President of the Security Council dated 9 October 2003, p. 146(20) Letter from the Permanent Mission of Kuwait to the President of the General Assembly dated 1 December 2003, p. 147(23) Official Records of the General Assembly, Fourth Session, Ad hoc Political Committee, Summary Records of Meetings, 27 September – 7 December 1949, 56th Meeting, 3 December 1949, p. 339(118), p. 149(27) Official Records of the Security Council, First Year: Second Series, No. 21, 79th Meeting, 4 November 1946, p. 498, p. 149(27) Office Records of the Security Council, Second Year, No. 89, 202nd meeting, 15 September 1947, pp. 2404–2405, p. 149(27) Official Records of the Security Council, Fifth Year, No. 48, 506th meeting, 29 September 1950, p. 5, p. 149(27) Official Records of the Security Council, Sixth Year, S/PV.531, 531st meeting, 31 January 1951, pp. 11–12 (57), p. 149(27) General Assembly, 23rd Session, Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9, p. 149(27) Statements by the Representatives of Palestine and Israel, A/ES-10/PV.21, p. 151(31) Rule 9(b) of the UN General Assembly Rules of Procedure, p. 152(35) British Memorandum of 16 September 1922, p. 165(70) Judgment of the International Military Tribunal of Nuremberg of 30 September and 1 October 1946, p. 172(89) Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14–26 April 1947, p. 8, p. 174–75(95)



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629

Sources of Law (cont.) Judgment of the Supreme Court of Israel of 30 May 2004, p. 176(100) Case No. 52/79, López Burgos v. Uruguay, p. 179(109) Case No. 56/79, Lilian Celiberti de Casariego v. Uruguay, p. 179(109) Case No. 106/81, Montero v. Uruguay, p. 179(109) Document of Commission on Human Rights, Preliminary Draft E/CN.4/SR.194, p. 179(109) UN Official Records of the General Assembly, Tenth Session, Annexes, A/2929, Part II, Chap. V, para. 4(1955), p. 179(109) Report of the UN Secretary-General, “Summary Legal Position of the Palestine Liberation Organisation”, p. 181(115), 182(116), 184(122), 189(132), 190–91(133) Exchange of Letters of 9 September 1993 between Mr Yasser Arafat and Mr Yitzhak Rabin, p. 182–83(118) Communication of Israel to UN Secretary-General of 3 October 1991, p. 187(127) Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine, E/CN.4/2004/6, 8 September 2003, p. 189(133) Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, A/58/311, 22 August 2003, p. 189–90(133) Report by the Special Rapporteur of the UN Commission on Human Rights, Jean Ziegler, “The Right to Food”, Addendum, Mission to the Occupied Palestinian Territories, E/CN.4/2004/10/Add.2, 31 October 2003, p. 189–90(133)

ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RESPECT OF KOSOVO General List No.: 141 Question submitted for the advisory opinion: (10 October 2008) ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’

Source: General Assembly Resolution 63/3 of 8 October 2008 Section A – Procedural and Organizational Aspects Official citation: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403 Duration of the proceedings: 10 October 2008 to 22 July 2010 Authoritative text: English Filing of written statements: France, Norway, Cyprus, Serbia, Argentina, Germany, Netherlands, Albania, Slovenia, Switzerland, Bolivia, United Kingdom, United States of America and Spain and the authors of the unilateral declaration of independence. Oral statements during public sittings: 1–11 December 2009 Serbia (H.E. Mr. Dušan T. Bataković, Mr. Vladimir Djeric, Mr. Andreas Zimmermann, Mr. Malcolm N. Shaw Q.C., Mr. Marcelo G. Kohen, Mr. Saša Obradović); authors of the declaration of independence (Mr. Skender Hyseni, Sir Michael Wood, Mr. Daniel Müller, Mr. Sean D. Murphy); Albania (H.E. Mr. Gazmend Barbullushi, Mr. Jochen A. Frowein, Mr. Terry D. Gill); Germany (Ms. Susanne Wasum-Rainer); Saudi Arabia (H.E. Mr. Abdullah A. Alshaghrood); Argentina (H.E. Madam Susana Ruiz Cerutti); Austria (H.E. Mr. Helmut Tichy); Azerbaijan (H.E. Mr. Agshin Mehdiyev); Belarus (H.E. Madam Elena Gritsenko); Bolivia (H.E. Mr. Roberto Calzadilla Sarmiento); Brazil (H.E. Mr. José Artur Denot Medeiros);



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631

Bulgaria (Mr. Zlatko Dimitroff); Burundi (Mr. Thomas Barankitse); China (H.E. Madam Xue Hanqin); Cyprus (H.E. Mr. James Droushiotis, Mr. Vaughan Lowe Q.C., Mr. Polyvios G. Polyviou); Croatia (H.E. Madam Andreja Metelko-Zgombic); Denmark (H.E. Mr. Thomas Winkler); Spain (Ms Concepción Escobar Hernández); USA (Mr. Harold Hongju Koh); Russian Federation (H.E. Mr. Kirill Gevorgian); Finland (Ms Päivi Kaukoranta, Mr. Martti Koskenniemi); France (Ms. Edwige Belliard, Mr. Mathias Forteau); Jordan (H.R.H. Prince Zeid Raad Zeid Al Hussein); Norway (Mr. Rolf Einar Fife); Netherlands (Ms Liesbeth Lijnzaad); Romani (Mr. Bogdan Aurescu, Mr. Cosmin Dinescu); UK (Mr. Daniel Bethlehem Q.C., Mr. James Crawford); Venezuela (Mr. Alejandro Fleming); and Viet Nam (H.E. Madam Nguyen Thi Hoang Anh). Orders Date of Order and Authority 17 October 2008 Court – President Higgins

Content Decision that UN and the Member States and the authors of the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo are likely to be able to furnish information on the questions submitted for the advisory opinion and fixing of time-limits: 17 April 2009 – Filing of written statements relating to the questions in accordance with Article 66, paragraph 2, of the ICJ Statute 17 July 2009 – Opening of Public Hearing

Section B – Advisory Opinion Official citation: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403 Date of Order: 22 July 2010 Authoritative text: English Composition of the Court: President OWADA; Vice-President TOMKA; Judges KOROMA, AL-KHASAWNEH, BUERGENTHAL, SIMMA, ABRAHAM, KEITH, SEPÚLVEDAAMOR, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREENWOOD; Registrar COUVREUR. Headnotes: Jurisdiction of the Court to give the advisory opinion requested.

632

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Article 65, paragraph 1, of the Statute – Article 96, paragraph 1, of the Charter – Power of General Assembly to request advisory opinions – Articles 10 and 11 of the Charter – Contention that General Assembly acted outside its powers under the Charter – Article 12, paragraph 1, of the Charter – Authorization to request an advisory opinion not limited by Article 12. Requirement that the question on which the Court is requested to give its opinion is a “legal question” – Contention that the act of making a declaration of independence is governed by domestic constitutional law – The Court can respond to the question by reference to international law without the need to address domestic law – The fact that a question has political aspects does not deprive it of its character as a legal question – The Court is not concerned with the political motives behind a request or the political implications which its opinion may have. The Court has jurisdiction to give the advisory opinion requested. * * Discretion of the Court to decide whether it should give an opinion. Integrity of the Court’s judicial function – Only “compelling reasons” should lead the Court to decline to exercise its judicial function – The motives of individual States which sponsor a resolution requesting an advisory opinion are not relevant to the Court’s exercise of its discretion – Requesting organ to assess purpose, usefulness and political consequences of opinion. Delimitation of the respective powers of the Security Council and the General Assembly – Nature of the Security Council’s involvement in relation to Kosovo – Article 12 of the Charter does not bar action by the General Assembly in respect of threats to international peace and security which are before the Security Council – General Assembly has taken action with regard to the situation in Kosovo. No compelling reasons for Court to use its discretion not to give an advisory opinion. * * Scope and meaning of the question. Text of the question in General Assembly resolution 63/3 – Power of the Court to clarify the question – No need to reformulate the question posed by the General Assembly – For the proper exercise of its judicial function, the Court must establish the identity of the authors of the declaration of independence – No intention by the General Assembly to restrict the Court’s freedom to determine that issue – The Court’s task is to determine whether or not the declaration was adopted in violation of international law. * *



Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

633

Factual background. Framework for interim administration of Kosovo put in place by the Security Council – Security Council resolution 1244 (1999) – Establishment of the United Nations Interim Administration Mission in Kosovo (UNMIK) – Role of Special Representative of the Secretary-General – “Four pillars” of the UNMIK régime – Constitutional Framework for Provisional Self-Government – Relations between the Provisional Institutions of Self-Government and the Special Representative of the Secretary-General. Relevant events in the final status process – Appointment by Secretary-General of Special Envoy for the future status process for Kosovo – Guiding Principles of the Contact Group – Failure of consultative process – Comprehensive Proposal for the Kosovo Status Settlement by Special Envoy – Failure of negotiations on the future status of Kosovo under the auspices of the Troika – Elections held for the Assembly of Kosovo on 17 November 2007 – Adoption of the declaration of independence on 17 February 2008. * * Whether the declaration of independence is in accordance with international law. No prohibition of declarations of independence according to State practice – Contention that prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity – Scope of the principle of territorial integrity is confined to the sphere of relations between States – No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence – Issues relating to the extent of the right of selfdetermination and the existence of any right of “remedial secession” are beyond the scope of the question posed by the General Assembly. General international law contains no applicable prohibition of declarations of independence – Declaration of independence of 17 February 2008 did not violate general international law. Security Council resolution 1244 and the Constitutional Framework – Resolution 1244 (1999) imposes international legal obligations and is part of the applicable international law – Constitutional Framework possesses international legal character – Constitutional Framework is part of specific legal order created pursuant to resolution 1244 (1999) – Constitutional Framework regulates matters which are the subject of internal law – Supervisory powers of the Special Representative of the Secretary-General – Security Council resolution 1244 (1999) and the Constitutional Framework were in force and applicable as at 17 February 2008 – Neither of them contains a clause providing for termination and neither has been repealed – The Special Representative of the Secretary-General continues to exercise his functions in Kosovo.

634

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Security Council resolution 1244 (1999) and the Constitutional Framework form part of the international law to be considered in replying to the question before the Court. Interpretation of Security Council resolutions – Resolution 1244 (1999) established an international civil and security presence in Kosovo – Temporary suspension of exercise of Serbia’s authority flowing from its continuing sovereignty over the territory of Kosovo – Resolution 1244 (1999) created an interim régime – Object and purpose of resolution 1244 (1999). Identity of the authors of the declaration of independence – Whether the declaration of independence was an act of the Assembly of Kosovo – Authors of the declaration did not seek to act within the framework of interim self-administration of Kosovo – Authors undertook to fulfil the international obligations of Kosovo – No reference in original Albanian text to the declaration being the work of the Assembly of Kosovo – Silence of the Special Representative of the Secretary-General – Authors of the declaration of independence acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration. Whether or not the authors of the declaration of independence acted in violation of Security Council resolution 1244 (1999) – Resolution 1244 (1999) addressed to United Nations Member States and organs of the United Nations – No specific obligations addressed to other actors – The resolution did not contain any provision dealing with the final status of Kosovo – Security Council did not reserve for itself the final determination of the situation in Kosovo – Security Council resolution 1244 (1999) did not bar the authors of the declaration of 17 February 2008 from issuing a declaration of independence – Declaration of independence did not violate Security Council resolution 1244 (1999). Declaration of independence was not issued by the Provisional Institutions of Self-Government – Declaration of independence did not violate the Constitutional Framework. Adoption of the declaration of independence did not violate any applicable rule of international law. Final paragraph(s) (p. 452, para. 123) THE COURT, (1) Unanimously, Finds that it has jurisdiction to give the advisory opinion requested; (2) By nine votes to five, Decides to comply with the request for an advisory opinion;



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IN FAVOUR: President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood; AGAINST: Vice-President Tomka; Judges Koroma, Keith, Bennouna, Skotnikov; (3) By ten votes to four, Is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law. IN FAVOUR: President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, Cançado Trindade, Yusuf, Greenwood; AGAINST: Vice-President Tomka; Judges Koroma, Bennouna, Skotnikov Declarations/Opinions Declaration

Judge Tomka

Dissenting Opinion

Judge Koroma

Declaration

Jude Simma

Separate Opinion

Judges Keith and Sepúlveda-Amor

Dissenting Opinion

Judges Bennouna and Skotnikov

Separate Opinions

Judges Cancado Trindade and Yusuf

Sources of Law UN Charter

Art 2(4), p. 437(80) Art. 10, p. 413(22), Art. 12, p. 414(22, 24), 420(40, 41, 42), Art. 12(1), p. 414(23) Art 17(1), p. 422(45), Art. 24, p. 439(85) Art 25, p. 439(85) Art. 96, p. 407(1), 413(20), 414(25), Art. 96(1), p. 413(21), 414(24), Art 96(2), p. 417(33), Chapter VI, p. 439(85)

ICJ Statute

Art. 65, p. 407(1), 414(25), Art 65(1), p. 413(18), 415(29), Art. 65(2), p. 408(5) Art. 66(1), p. 407(2) Art. 66(2), p. 407(3) Art. 66(4), p. 407(3)

ICJ Rules of Court

Art. 106, p. 409(13)

636

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Sources of Law (cont.) PCIJ case-law

Status of Eastern Carelia, Advisory Opinion, 1923, [P.C.I.J., Series B, No. 5, p. 29], p. 416(29), Interpretation of the Greco-Turkish Agreement of 1 December 1926, Advisory Opinion, 1928, [P.C.I.J., Series B, No. 16], p. 423(50),

ICJ case-law

Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, [I.C.J. Reports 1982, p. 333–334 (21)], p. 413(19), 423(50), Application for Review of UNAT Judgment No. 158, [I.C.J. Reports 1973, p. 172(14)], p. 415(27), 416(29), Application for Review of UNAT Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, [I.C.J. Reports 1982, p. 333–334(21)], p. 144(14), 416(29), Certain expenses of the United Nations (Art. 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [I.C.J. Reports 1962, p. 175], p. 422(46, 47), 425(54), Conditions of Admission of a State to Membership in the United Nations (Art. 4 of Charter), I.C.J. Reports 1947–48, p. 61], p. 415(27), 422(47) Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [I.C.J. Reports 1999, p. 62], p. 416(30), East Timor (Portugal v. Australia), Judgment [I.C.J. Reports 1995, p. 102(29)], p. 436(79) Interpretation of Peace Treaties, Advisory Opinion, [I.C.J. Reports 1950, p. 70], p. 413(21), 416(30), 417(33), Judgments of the Administrative Tribunal of the ILO upon Complaints made against Unesco, [I.C.J. Reports 1956, p. 86], p. 416(30) Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, [I.C.J. Reports 1980, p. 89(35)], p. 423(50) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [I.C.J. Reports 1971, p. 51–54(107–116)], p. 422(46), 424(51), 436(39), 439(85), 442(94), 451(117) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [I.C.J. Reports 2004(I), p. 144(13)], p. 412(17), 413(21), 414(24), 416(29), 418(35), 420(39, 41, 42), 421(43), 424(51), 436(79)



Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

637

Sources of Law (cont.) Legality of the Threat or Use of Nuclear Weapons, [I.C.J. Reports 1996(I), p. 232(10)], p. 412(17), 413(21), 415(27), 417(34), 418(35) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, [I.C.J. Reports 1992, p. 15(39–41)], p. 422(46), 439(85) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. USA), Provisional Measures, Order of 14 April 1992, [I.C.J. Reports 1992, p. 126–127(42–44)], p. 422(46), 439(85) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, [I.C.J. Reports 1986, p. 101–103 (191–193)], p. 437(80) Western Sahara, Advisory Opinion, [I.C.J. Reports 1975, p. 18(15)], p. 415(25), 418(35), UN resolutions

1160 (1998), p. 418–19 (37), 439(86), 441(91), 450(116) 1199 (1998), p. 418–19 (37), 441(91), 450(116) 1203 (1998), p. 418–19 (37), 439(86), 441(91), 450(116) 1239 (1999), p. 418–19 (37), 439(86), 441(91) 1244 (1999), p. 418–19 (37), 419 (38), 422(45, 46), 426(57, 58, 59), 428(60, 61), 429(62), 430(64), 434(75), 436(78), 438(83), 439(85), 440(88, 89, 90), 441(91, 92), 442(93, 95), 443(96, 97, 98), 444(99, 100, 101), 445(104), 446(106), 448(110, 111, 112), 449(113, 114, 115), 450(116, 117), 451(118), 452(119, 122) 1367 (2001), p. 418–19 (37) 49/204, p. 419(38) 50/190, p. 419(38) 51/111, p. 419(38) 52/139, p. 419(38) 53/164, p. 419(38) 53/241, p. 419(38) 54/183, p. 422(45) 54/245A, p. 419(38) 54/245B, p. 419(38)

638

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Sources of Law (cont.) 55/227A, p. 419(38) 55/227B, p. 419(38) 55/295, p. 419(38) 57/326, p. 419(38) 58/305, p. 419(38) 59/286A, p. 419(38) 59/286B, p. 419(38) 377A (V) Uniting for Peace Resolution, p. 421(42) 63/3 of 8 October 2008, p. 423(52, 53), 436(78) Draft resolution sponsored by Belgium, France, Germany, Italy, the United Kingdom and the United States, United Nations doc. S/2007/437 Prov., 17 July 2007, p. 433(71) 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”, p. 437(80) 216(1995), p. 437(80) 217(1965), p. 437(80) 541(1983), p. 437(80) 787(1992), p. 437(80) Treaties

Military Technical Agreement of 9 June 1999, p. 427(58) Rambouillet accords (S/1999/648), p. 427(59), 445(104), 448(112) Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975, p. 437(80) Vienna Convention on the Law of Treaties, p. 442(94)

UN reports/ Documents

A/63/PV.22, p. 1, p. 417(32), 424(53), S/PV.5839, p. 418–19 (37) S/PV.5850, p. 418–19 (37) S/2005/635 (7 October 2005), p. 430(64) Report of the Secretary-General of 12 June 1999 (United Nations doc. S/1999/672, 12 June 1999), p. 428(60), Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations doc. S/2001/565, 7 June 2001, p. 430(62),



Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

639

Sources of Law (cont.) UNMIK Regulation of 25 July 1999, p. 428(60), 443(97) UNMIK Regulation 2001/9 of 15 May 2001, p. 429(62), 440(89) UNMIK/REG/2002/9 of 3 May 2002, p. 441(91) UNMIK/REG/2007/29 of 4 October 2007, p. 441(91) UNMIK/REG/2008/1 of 8 January 2008 p. 441(91) UNMIK/REG/2008/9 of 8 February 2008, p. 441(91) Statement by the President of the Security Council of 24 October 2005, United Nations doc. S/PRST/2005/51, p. 430(64) Letter dated 10 November 2005 from the President of the Security Council addressed to the Secretary-General, United Nations doc. S/2005/709, p. 430(65), Terms of Reference, dated 10 November 2005, as an appendix to the Letter of the Secretary-General to Mr. Martti Ahtisaari of 14 November 2005, United Nations dossier No. 198, p. 430(65), United Nations dossier No. 189, 7 February 2003, p. 447(108) Guiding Principles of the Contact Group for a Settlement of the Status of Kosovo, as Annexed to the Letter Dated 10 November 2005 from the President of the Security Council addressed to the Secretary-General, United Nations doc. S/2005/709, p. 431(66) Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations docs. S/2006/361, S/2006/707 and S/2006/906, p. 431(67) Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2006/707; S/2006/906, p. 431(67) Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations doc. S/2007/134, 9 March 2007, p. 431(68) Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations doc. S/2007/395, 29 June 2007, p. 1, p. 431(68) Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council attaching the Report of the Special Envoy of the Secretary-General on Kosovo’s future status, United Nations doc. S/2007/168, 26 March 2007, p. 432(69)

640

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

Sources of Law (cont.) S/2007/168/Add. 1, 26 March 2007, p. 432(70) S/2007/168/Add. 1, 26 March 2007, Art. 11.1, p. 433(70) Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, United Nations doc. S/2007/168, p. 433(71) Report of the Security Council mission on the Kosovo issue, United Nations doc. S/2007/256, 4 May 2007, p. 433(71) Report of the European Union/United States/Russian Federation Troika on Kosovo, 4 December 2007, annexed to S/2007/723, p. 433(72) Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations doc. S/2007/768), p. 434(73) Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations doc. S/2008/211, p. 434(73) S/PV.5839; Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, United Nations doc. S/2008, p. 435(77) S/PV.5839, p. 435(77) Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, submitted to the Security Council on 28 March 2008, S/2008/211, p. 447(108) Presidential Statement of 26 November 2008 (S/PRST/2008/44), p. 441(91) GA document A/ES-10/PV.23, p. 182(116) Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2010/169, 6 April 2010, Reports S/2008/692 of 24 November 2008, S/2009/149 of 17 March 2009, S/2009/300 of 10 June 2009, S/2009/497 of 30 September 2009 and S/2010/5 of 5 January 2010, p. 441–42(92) Others

Letter of the Permanent Representative of Serbia to the United Nations addressed to the Secretary-General, 22 August 2008, A/63/195, p. 423(53) Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada ([1998] 2 Supreme Court Reporter (SCR) 217; 161 Dominion Law Reports (DLR) (4th) 385; 115 International Law Reports (ILR) 536), p. 425(55)



Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

641

Sources of Law (cont.) Charter of the Constitutional Framework, p. 429(62), Declaration of Independence of 17 February 2008, p. 407(1), 408(3, 4, 6, 7, 8), 409(9, 10, 11, 13), 415(26), 416(32), 419(37, 38, 39), 420(40), 421(43, 44), 423(49, 51), 424(52, 53), 424(54, 56), 426(57), 430(63), 434(75), 435(76), 436(78), 437(84), 444(102), 445(103, 104), 447(108, 109), 448(110, 111, 112), 449(113, 114), 451(118), 452(119, 120, 121,122), 453(123) Presidential Statement of 26 November 2008 (S/PRST/2008/44), p. 441(91)

JUDGMENT NO. 2867 OF THE ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL LABOUR ORGANISATION UPON A COMPLAINT FILED AGAINST THE INTERNATIONAL FUND FOR AGRICULTURE DEVELOPMENT Status: Pending as of 31 December 2010 General List No.: 146 Question submitted for the advisory opinion:   I. Was the ILOAT competent, under Article II of its Statute, to hear the complaint introduced against the International Fund for Agricultural Development (hereby the Fund) on 8 July 2008 by Ms. A.T.S.G., an individual who was a member of the staff of the Global Mechanism of the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (hereby the Convention) for which the Fund acts merely as housing organization? II. Given that the record shows that the parties to the dispute underlying the ILOAT’s Judgment No. 2867 were in agreement that the Fund and the Global Mechanism are separate legal entities and that the Complainant was a member of the staff of the Global Mechanism, and considering all the relevant documents, rules and principles, was the ILOAT’s statement, made in support of its decision confirming its jurisdiction, that ‘the Global Mechanism is to be assimilated to the various administrative units of the Fund for all administrative purposes’ and that the ‘effect of this is that administrative decisions taken by the Managing Director in relation to staff in the Global Mechanism are, in law, decisions of the Fund’ outside its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT? III. Was the ILOAT’s general statement, made in support of its decision confirming its jurisdiction, that ‘the personnel of the Global Mechanism are staff members of the Fund’ outside its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT? IV. Was the ILOAT’s decision confirming its jurisdiction to entertain the Complainant’s plea alleging an abuse of authority by the Global Mechanism’s Managing Director outside its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT?



Judgment No. 2867, Complaint Filed Against the International Fund 643 for Agriculture Development    V. Was the ILOAT’s decision confirming its jurisdiction to entertain the Complainant’s plea that the Managing Director’s decision not to renew the Complainant’s contract constituted an error of law outside its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT?   VI. Was the ILOAT’s decision confirming its jurisdiction to interpret the Memorandum of Understanding between the Conference of the Parties to the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa and IFAD (hereby the MoU), the Convention, and the Agreement Establishing IFAD beyond its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT?   VII. Was the ILOAT’s decision confirming its jurisdiction to determine that by discharging an intermediary and supporting role under the MoU, the President was acting on behalf of IFAD outside its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT? VIII. Was the ILOAT’s decision confirming its jurisdiction to substitute the discretionary decision of the Managing Director of the Global Mechanism with its own outside its jurisdiction and/or did it constitute a fundamental fault in the procedure followed by the ILOAT? IX. What is the validity of the decision given by the ILOAT in its Judgment No. 2867?”; Source: Resolution of the 99th Session of the Executive Board of the International Fund for Agriculture Development of 22 April 2010.

Orders Date of Order and Authority 29 April 2010 Court – Vice-President Tomka

Content Decision that International Fund for Agriculture Development and its Member States entitled to appear before the Court, the States Parties to the UN Convention to Combat Desertification entitled to appear before the Court, and the Specialised Agencies which have made jurisdiction of the ILOAT recognition declaration to furnish information on the questions submitted for the advisory opinion and fixing of time-limits, decision inviting IFAD President to submit views of the complainant in the proceedings against

644 Judgment No. 2867, Complaint Filed Against the International Fund for Agriculture Development Orders (cont.) Date of Order and Authority

Content the IFAD by 29 October 2010 and 31 January 2011 for submission of possible statement and any possible comments on the possible statement by the complainant 29 October 2010 – Filing of written statements relating to the questions in accordance with Article 66, paragraph 2, of the ICJ Statute 31 January 2011 – Opening of Public Hearing

Analysis and Trend Patterns

Table of Contents No.

Analysis

Page

1

Duration of Cases and Advisory Opinion •  Permanent Court of International Justice •  International Court of Justice •  Advisory Opinion

649 649 656 680

2

Countries as Applicant/Respondent •  Permanent Court of International Justice •  International Court of Justice

683 683 684

3

Countries Submitting Written Statement/Oral Statement •  Permanent Court of International Justice •  International Court of Justice

687 687 694

4

Declarations/Opinions of Judges •  Permanent Court of International Justice •  International Court of Justice •  International Court of Justice (Judges ad hoc)

717 717 729 828

22 May 1922 to 12 August 1922 20 July 1922 to 12 August 1922 10 November 1922 to 7 February 1923 27 April to 23 July 1923 16 January to 17 August 1923 23 May 1923 to 28 June 1923

Total Total Total

The S. S. Wimbledon (UK, France, Italy, Japan v. Germany) Questions Relating to Settlers of German Origin in Poland (Germany, Poland) (Advisory) Questions Relating to Settlers of German Origin in Poland (Germany, Poland) (Advisory) Questions Concerning the Acquisition of Polish Nationality (Germany, Poland) (Advisory) Delimitation of the Polish-Czechoslovakian Total Frontier (Czechoslovakia, Poland) (Advisory) Total The Mavrommatis Palestine Concessions Jurisdiction (Greece v. Turkey)

29 September 1923 to 6 December 1923 13 May 1924 to 30 August 1924 3 June 1924 to 30 August 1924

Total Total Permission to intervene Merits 16 January 1923 to 17 August 1923 Total 5 March 1923 to 10 September 1923 Total 5 March 1923 to 10 September 1923 Total 16 July 1923 to 15 September 1923

27 May 1922 to 31 July 1922

Total

Designation of the Workers’ Delegate for the Netherlands at ILC (Advisory) Competence of the International Labour Organization (Advisory) Competence of the International Labour Organisation (Methods of Agriculture Production) (Advisory) Nationality Decrees issued in Tunis and Morocco on 8 November 1921 (Advisory) Status of Eastern Carelia (Advisory)

Duration

Proceeding

Case

Permanent Court of International Justice

3 months/17 days 2 months/28 days

2 months/7 days

2 months

6 months/6 days

6 months/6 days

8 months/1day

2 months/27 days 8 months/1 day 1 months/5 days

2 months/28 days

22 days

2 months/17 days

2 months/4 days

Total

Duration of Cases and Advisory Opinions

Case concerning the Factory at Chorzów (Jurisdiction) (Germany v. Poland) The Case of the S.S. “Lotus” (France/Turkey)

Denunciation of the Treaty of 2 November 1865 between China and Belgium (Belgium v. China)

Case Concerning Certain German Interests in Polish Upper Silesia (Germany v. Poland) Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (UK, Turkey) (Advisory) Case concerning Certain German Interests in Polish Upper Silesia (Germany v. Poland) Competence of the International Labour Organization (Advisory)

The Monastery of Saint-Naoum (Albania, Yugoslavia) (Advisory) Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Bulgaria v. Greece) Exchange of Greek and Turkish Populations (Greece, Turkey) (Advisory) Interpretation of Judgment No. 3 (Greece v. Bulgaria) The Mavrommatis Jerusalem Concessions (Greece v. UK) Polish Postal Service in Danzig (Danzig, Poland) (Advisory)

Case

(cont.)

31 July 1924 to 12 September 1924 20 December 1924 to 21 February 1925 3 June 1924 to 26 May 1925 13 May 1924 to 26 March 1925 14 March 1925 to 16 May 1925 15 May 1925 to 25 August 1925 12 & 18 June 1925 to 25 August 1925 23 September 1925 to 21 November 1925 15 May and 25 August 1925 to 25 May 1926 20 March 1926 to 23 July 1926 26 November 1926 to 25 May 1929 26 November 1926 to 8 January 1927 8 February 1927 to 26 July 1927 4 January 1927 to 7 September 1927

Total Total Total Merits Total Total Jurisdiction Total Total

Total Interim Measures of Protection Total Total

Total

19 June 1924 to 4 September 1924

Duration

Total

Proceeding

8 months/3 days

4 months/18 days

2 years/7 months/1 day 1 months/12 days

4 months/3 days

1 year/10 days (9 months)

1 month/29 days

3 months/10 days 2 months/7 days

2 months/2 days

10 months/13 days

11 months/23 days

1 year/2 months/28 days

1 months/12 days

2 months/16 days

Total

650 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Case of Readaptation of the Mavrommatis Jerusalem Concessions (Greece v. UK) Case concerning the Factory at Chorzów (Indemnities) (Germany v. Poland) Jurisdiction of the European Commission of the Danube between Galatz and Braila (UK, France, Italy, Romania) (Advisory) Interpretations of Judgments Nos. 7 and 8 (Germany v. Poland) Jurisdiction of the Courts of Danzig (Danzig, Poland) (Advisory) Rights of Minorities in Upper Silesia (Germany v. Poland) Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Greece-Turkey) (Advisory) The Factory at Chorzów (Claims for Indemnity) (Merits) (Germany v. Poland) Case Concerning the Payment of Various Serbian Loans (France v. Yugoslavia) Case Concerning the Payment in Gold of Brazilian Loans Contracted in France (Brazil v. France) Case of the Free Zones of Upper Savoy and the District of Gex (France v. Switzerland) Case relating to the Territorial Jurisdiction of the International Commission of the River Oder (UK, Czechoslovak Republic, Denmark, France, Germany, Sweden and Poland)

Case

(cont.)

18 December 1926 to 8 December 1927 18 October 1927 to 16 December 1927 24 September 1927 to 3 March 1928 2 January 1928 to 26 April 1928 7 June 1928 to 28 August 1928 8 February 1927 to 13 September 1928 25 May 1928 to 12 July 1929 27 April 1928 to 12 July 1929 29 March 1928 to 19 August 1929 29 November 1928 to 10 September 1929

Total Total Total Total Total Total Total Total Total Total

9 months/12 days

1 year/4 months/21 days

1 year/2 months/14 days

1 year/1month/11 days

1 year/7 months/6 days

2 months/21 days

3 months/24 days

5 months/9 days

1 months/28 days

11 months/21days

1 months/21 days

14 October 1927 to 21 November 1927

Total

Total 4 months/13 days 2 months/1 days

Duration

Total 28 May 1927 to 10 October 1927 Jurisdiction 9 August 1927 to 10 October 1927

Proceeding

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 651

Interpretation of the Statute of the Memel Territory (UK, France, Italy, Japan v. Lithuania)

The Greco-Bulgarian “Communities” (Bulgaria, Greece) City of Danzig and International Labour Organisation (Advisory) Case of the Free Zones of Upper Savoy and the District of Gex (Second phase) (France v. Switzerland) Access to German Minorities Schools in Upper Silesia (Germany, Poland) (Advisory) Customs Régime between Germany and Austria (Austria, Czechoslovakia, France, Germany, Italy) (Advisory) Railway Traffic between Lithuania and Poland (Lithuania, Poland) (Advisory) Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels (Danzig, Poland) (Advisory) Treatment of Polish Nations and other Persons of Polish Origin or Speece in the Danzig Territory (Danzig, Poland) (Advisory) Interpretation of The Greco-Bulgarian Agreement of 9 December 1927 (Bulgaria, Greece) (Advisory) Case of the Free Zones of Upper Savoy and the District of Gex (France v. Switzerland)

Case

(cont.)

4 months 24 days 1 month/20 days

29 March 1928 to 6 December 1930 31 January 1931 to 15 May 1931 19 May 1931 to 5 September 1931 28 January 1931 to 15 October 1931 28 September 1931 to 11 December 1931 28 May 1931 to 4 February 1932 28 September 1931 to 8 March 1932 29 March 1928 to 7 June 1932 11 April 1932 to 11 August 1932 31 May 1932 to 24 June 1932 25 June 1932 to 11 August 1932

Total Total Total Total Total Total Total Total Total Preliminary objection Merits

4 years/2 months/9 days

8 months/8 days

8 months/7 days

2 months/14 days

8 months/17 days

3 months/17 days

2 months/15 days

2 years/8 months/8 days

3 months/11 days

15 May to 26 August 1930

Total

6 months/14 days

Total

17 January 1930 to 31 July 1930

Duration

Total

Proceeding

652 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

12 July 1931 to 5 April 1933 18 May 1932 to 2 December 1933 8 October 1932 to 4 February 1933

Total Total Preliminary objection Interim measures of protection Total Total Interim Measures of Protection Total

18 November 1931 to 26 January 1933

Total

9 May 1933 to 15 December 1933

3 July 1933 to 2 December 1933 3 July 1933 to 29 July 1933

11 July 1932 to 12 May 1933

3 May 1933 to 11 May 1933

6 months/3 days

12 May 1932 to 15 November 1932

7 months/6 days

4 months/29 days 27 days

10 months/1day

8 days

1 year/6 months/15 days 2 months/27 days

1 year/8 months/23 days

1 year/2 months/8 days

16 days 16 days

Total

18 July 1932 to 3 August 1932 18 July 1932 to 3 August 1932

Duration

Total Interim Measures of Protection Total

Proceeding

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Appeal from a Judgment of the HungaroCzechoslovak Mixed Arbitral Tribunal (Czechoslovakia v. Hungary)

Case concerning the Polish Agrarian Reform and the German Minority (Germany v. Poland)

Appeals from certain Judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (Czechoslovakia v. Hungary)

Prince Von Pless Administration (Germany v. Poland)

Legal Status of the South-Eastern Territory of Greenland (Norway v. Denmark, Denmark v. Norway) Interpretation of the Convention of 1919 Concerning Employment of Women during Night (Advisory) Case concerning the Delimitation of the Territorial Waters Between the Island of Castellorizo and the Coast of Anatolia (Italy v. Turkey) Legal Status of Eastern Greenland (Denmark v. Norway)

Case

(cont.)

653

11 months/11 days 1 year/1 month/25 days 4 months/8 days 2 years/2 months/15 days 1 year/3 months/26 days

23 May 1936 to 16 December 1936 23 November 1935 to 27 June 1936 1 August 1936 to 28 June 1937 27 October 1936 to 8 October 1937 5 March 1937 to 30 April 1938 29 June 1937 to 6 November 1937 30 March 1936 to 14 June 1938 2 November 1937 to 28 February 1939

Total Total Total Preliminary objection Total Total

15 March 1938 to 28 February 1939

5 months/24 days 7 months/4 days

6 December 1935 to 16 December 1936 5 March 19361 to 23 May 1936

Total Preliminary objection Merits Total

Preliminary objection

1 year/10 days 2 months/18 days

30 September 1935 to 4 December 1935

Total

11 months/13 days

10 months/27

2 months/4 days

7 months/11 days 2 months/14 days

1 May 1934 to 12 December 1934 23 January 1935 to 6 April 1935

Total Total

9 months/24 days

Total

23 May 1933 to 17 March 1934

Duration

Total

Proceeding

1 5 March 1936: By this date fixed for the filing of the Counter-Memorial, Yugoslavia presented its Counter-Memorial entitled “Counter-Memorial of the Yugoslav Government embodying the submission of Preliminary Objection”

The Borchgrave Case (Belgium v. Spain) The Phosphates in Morocco Case (Italy v. France) The Railway Line Panevezys-Saldutiskis (Estonia v. Lithuania)

The Losinger & Co. Case (Switzerland v. Yugoslavia) Diversion of Water from the Meuse (Netherlands v. Belgium) Lighthouses in Crete and Samos (France/Greece)

The Pajzs, Csáky, Esterházy Case (Hungary v. Yugoslavia)

Lighthouse case between France and Greece (France v. Greece) The Oscar Chinn Case (Belgium v. UK) Minority Schools in Albania (Albania, Greece) (Advisory) Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City (Danzig) (Advisory)

Case

(cont.)

654 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

The ‘Sociéte Commerciale de Belgique’ (Belgium v. Greece) Gerlizky (Liechtenstein v. Hungary)

The Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria)

Case

(cont.)

Total

Total Preliminary objection Interim Measures (2nd request) Total

Proceeding

17 June 1939 (*No letter from Liechtenstein received for the continuation of proceedings requested by the Registrar through his letter dated 3 September 1945)

NA

1 year/1 months/10 days

1 month/15 days

17 October 1939 to 5 December 1939 5 May 1938 to 15 June 1939

1 year/2 months/9 days 4 months/10 days

Total

26 January 1938 to 4 April 1939 25 November 1938 to 4 April 1939

Duration

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 655

Asylum (Colombia/Peru)

Protection of French Nationals and Protected Persons in Egypt (France v. Egypt)

Fisheries Jurisdiction (UK v. Norway)

Corfu Channel (UK v. Albania)

Case

Duration

15 October 1949 to 20 November 1950 15 October 1949 to 20 November 1950 20 to 27 November 1950

Total

Interpretation of judgment

Merits

13 October 1949 to 29 March 1950

Total

22 May 1947 to 15 December 1949 Preliminary 9 December 1947 to 25 March objection 1948 Merits 25 March 1949 to 9 April 1949 Compensation 9 April 1949 to 15 December 1949 Total 28 September 1949 to 18 December 1951

Total

Proceedings

Contentious Cases

International Court of Justice

–

Public Hearings

7 days

1 year/1 months/5 days

1 year/1 months/5 days

26 September to 27 November 1950 None

–

26 February to 5 March 1948 15 days 9 November 1948 to April 9 1949 8 months/6 days 17 November and 15 December 1949 1 year/2 months/21 days 25 September to 29 October and 18 December 1951 5 months/16 days None

3 months/16 days

1 year/8 months/24 days

Total

656 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Merits

Preliminary objection

Total

Proceedings

Anglo-Iranian Oil Company (UK v. Iran)

Total Interim measures of protection Preliminary objection Minquiers and Ecrehos (France/UK) Total

Ambatielos (Greece v. UK)

Total Preliminary objection Merits

Request for Interpretation of the Total Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru) Haya de la Torre (Colombia v. Peru) Total

Rights of Nationals of USA in Morocco (France v. USA)

Case

(cont.)

7 days

9 months/27 days

4 months/9 days

1 year/9 months/30 days

Total

6 December 1951 to 17 November 1953

1 year/17 days

5 July 1951 to 22 July 1952

15 to 17 May and 13 June 1951 – 15 to 17 May and 1 July 1952 23 to 30 March and 19 May 1953 – 30 June and 5 July 1951

15 to 26 July and 27 August 1950 None

None

–

Public Hearings

9 to 23 June and 22 July 1952 1 year/11 months/11 days 17 September to 8 October and 17 November 1953

1 year/1 month/26 days 1 month/9 days

10 months/18 days

26 May 1951 to 22 July 1952 26 May 1951 to 5 July 1951

1 July 1952 to 19 May 1953

13 December 1950 to 13 June 6 months 1951 9 April 1951 to 19 May 1953 1 year/1 month/10 days 9 February 1952 to 1 July 1952 4 months/22 days

28 October 1950 to 27 August 1952 21 June 1951 to 31 October 1951* (*Preliminary objection withdrawn) 31 October 1951 to 27 August 1952 20 November 1950 to 27 November 1950

Duration

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 657

Certain Norwegian Loans (France v. Norway)

Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and USA) Electricité de Beyrouth Company (France v. Lebanon) Treatment in Hungary of Aircraft and Crew of USA (USA v. Hungary) Treatment in Hungary of Aircraft and Crew of USA (USA v. USSR) Aerial Incident of 10 March 1953 (USA v. Czechoslovakia) Antarctica (UK v. Argentina) Antarctica (UK v. Chile) Aerial Incident of 7 October 1952 (USA v. USSR)

Nottebohm (Liechtenstein v. Guatemala)

Case

(cont.)

14 August 1953 to 29 August 1954 3 March 1954 to 12 July 1954 3 March 1954 to 12 July 1954 29 March 1955 to 14 March 1956 4 May 1955 to 16 March 1956 4 May 1955 to 16 March 1956 2 June 1955 to 14 March 1956 6 July 1955 to 6 July 1957 20 April 1956 to 6 July 1957

Total

Total

Total

Total

Total

Total Preliminary objection

Total

Total

19 May 1953 to 15 June 1954 30 October 1953 to 15 June 1954

17 December 1951 to 6 November 1955 15 September 1952 to 18 November 1953 18 November 1953 to 6 November 1955

Duration

Total Preliminary objection

Preliminary objection Merits

Total

Proceedings

None

None

None

None

None

None

None

10 and 18 November 1953 10 to 24 February and 2 to 8 March and 6 April 1955 – 10 to 14 May and 15 June 1953

–

Public Hearings

2 years – 1 year/2 months/17 days 13 to 28 May and 6 July 1957

9 months/12 days

10 months/12 days

10 months/12 days

11 months/15 days

4 months/9 days

4 months/9 days

1 year/15 days

1 year/27 days 7 months/15 days

2 year/19 days

3 years/10 months/ 20 days 1 year/2 months/3 days

Total

658 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Total

Preliminary objection

Total

Aerial Incident of 27 July 1955 (USA v. Bulgaria)

Interim measures of protection Preliminary objection Total

28 October 1957 to 30 May 1960

11 October 1957 to 21 March 1959 16 October 1957 to 26 May 1959 6 December 1958 to 26 May 1959

2 year/7 months/2 days

5 months/20 days

1 year/7 months/10 days

1 year/5 months/10 days

1 October 1957 to 21 March 1 year/5 months/20 days 1959 3 October to 24 October 1957 21 days

Total

1 year/4 months/ 18 days

10 July 1957 to 28 November 1958

26 November 1957 to 12 April 2 years/4 months/ 1960 17 days

22 December 1955 to 12 April 4 years/3 months/ 1960 21 days 15 April to 26 November 1957 7 months/14 days

Duration

Total

Merits

Preliminary objections

Total

Proceedings

Aerial Incident of 27 July 1955 (Israel v. Bulgaria)

Interhandel (Switzerland v. USA)

Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden)

Right of Passage over Indian Territory (Portugal v. India)

Case

(cont.)

None

16 March to 3 April and 26 May 1959

5 to 17 November 1958 and 21 March 1959 –

12 and 14 October 1957

23 September to 2 October and 26 November 1957 21 September to 6 November 1959 and 12 April 1960 25 September to 4 October and 28 November 1958 –

–

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 659

Temple of Preah Vihear (Cambodia v. Thailand)

Aerial Incident of 27 July 1955 (UK v. Bulgaria) Sovereignty over Certain Frontier Land (Belgium/the Netherlands) Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) Aerial Incident of 4 September 1954 (USA v. USSR) Barcelona Traction, Light and Power Company Ltd. (Belgium v. Spain) Compagnie du Port, des Quais et des Entrepôts de Beyrouth (France v. Lebanon) Aerial Incident of 7 November 1954 (USA v. USSR)

Case

(cont.)

13 February 1959 to 31 August 1 year/6 months/18 days 1960

1 year/3 days 1 year/20 days

7 July 1959 to 7 October 1959 6 October 1959 to 15 June 1962 23 May 1960 to 26 May 1961 26 May 1961 to 15 June 1962

Total

Total

Total

Preliminary objection Merits

Total

2 years/8 months/9 days

3 months

26 May and 10 and 15 October 1961 1 to 31 March and 15 June 1962

None

None

–

27 April to 5 May and 20 June 1959 15 September to 11 October and 18 November 1960 None

None

Public Hearings

2 years/6 months/27 days None

3 months/18 days

22 August 1958 to 9 December 1958 23 September 1958 to 19 April 1961

Total

Total

Total

Total

21 October 1957 to 3 August 1 year/10 months/13 days 1959 27 November 1957 to 20 June 1 year/6 months/24 days 1959 1 July 1958 to 18 November 2 year/4 months/17 days 1960

Duration

Total

Proceedings

660 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Preliminary objection Merits

Total

North Sea Continental Shelf (FR Germany/Denmark; FR Germany/Netherlands)

Total

Preliminary objection

Total

Preliminary objection Merits

Total

Proceedings

Barcelona Traction, Light and Power Company Ltd. (New Application, 1962) (Belgium v. Spain)

Northern Cameroons (Cameroon v. UK)

South West Africa (Ethiopia v. South Africa; Liberia v. South Africa)

Case

(cont.)

3 years/7 months/ 27 days

5 years/8 months/ 14 days 1 year/21 days

Total

16 February 1967 to 20 February 1969

24 July 1964 to 5 February 1970

2 years/4 days

5 years/6 months/ 12 days

19 June 1962 to 5 February 7 years/7 months/ 1970 16 days 15 March 1963 to 24 July 1964 1 year/4 months/9 days

30 May 1961 to 2 December 2 years/8 months/ 1963 2 days 14 August 1962 to 2 December 1 year/4 months/18 days 1963

4 November 1960 to 18 July 1966 30 November 1961 to 21 December 1962 21 December 1962 to 18 July 1966

Duration

11 March to 19 May and 24 July 1964 15 April to 14 May 1969 and 20 May to 20 June 1960 and 25 June to 22 July 1969 and 5 February 1970 23 October to 11 November 1968 and 20 February 1969

19 September to 3 October and 2 December 1963 –

2 to 22 October and 21 December 1962 15 March to 14 July and 20 September to 15 November and 29 November 1965 and 21 March and 18 July 1966 –

–

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 661

Nuclear Tests (Australia v. France)

Fisheries Jurisdiction (Germany v. Iceland)

Fisheries Jurisdiction (UK v. Iceland)

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan)

Case

(cont.)

Interim measures of protection Judgment

Total

Interim measures of protection Preliminary objection Merits

Total

1 year/5 months/ 23 days 1 year/7 months/ 11 days 1 month/13 days

6 months/4 days

2 months/12 days

1 year/5 months/ 23 days 7 months/28 days

8 months/2 days

4 months/3 days

9 months/19 days

1 year

Total

22 June to 20 December 1974 5 months/29 days

29 July 1972 to 2 February 1973 2 February 1973 to 25 July 1974 9 May 1973 to 20 December 1974 9 May 1973 to 22 June 1973

31 May 1972 to 2 February 1973 2 February 1973 to 25 July 1974 5 June 1972 to 2 February 1973 5 June to 17 August 1972

14 April 1972 to 2 February 1973 14 April 1972 to 17 August 1972

Total

Interim measures of protection Preliminary objection Merits

30 August 1971 to 18 August 1972

Duration

Total

Proceedings

4 to 11 July and 20 December 1974

21 to 25 May and 22 June 1973

8 January and 2 February 1973 28 March and 2 April and 25 July 1974 –

2 and 17 August 1972

5 January and 2 February 1973 25 and 29 March and 25 July 1974 –

1 and 17 August 1972

–

19 June to 3 July and 18 August 1972

Public Hearings

662 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Aegean Sea Continental Shelf (Greece v. Turkey)

Trial of Pakistani Prisoners of War (Pakistan v. India)

Nuclear Tests (New Zealand v. France)

Case

(cont.)

Interim measures of protection Preliminary objection

Total

Interim measures of protection Preliminary objection

Interim measures of protection Preliminary objection Total

Total

Proceedings

26 August 1976 to 19 December 1978

28 May 1973 & 4 June 1973 (Date of letter of India raising Preliminary Objection) to 24 May 1973 10 August 1976 to 19 December 1978 10 August to 11 September 1976

16 May 1973 to 20 December 1974 11 May 1973 to 15 December 1973 11 May 1973 to 13 July 1973

9 May 1973 to 20 December 1974 9 May 1973 to 22 June 1973

Duration

2 year/3 months/ 23 days

2 years/4 months/ 9 days 1 months/1 day

NA

2 months/2 days

7 months/4 days

1 year/7 months/4 days

1 month/13 days

1 year/7 months/11 days

Total

–

9 to 17 October and 19 December 1978

25 to 27 August and 11 September 1976

None

4 to 26 June 1973

10, 11 July and 20 December 1974 –

24, 25 May and 22 June 1973

–

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 663

Continental Shelf (Libya/Malta)

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA)

United States Diplomatic and Consular Staff in Tehran (USA v. Iran)

Continental Shelf (Tunisia/Libya)

Case

(cont.)

19 July 1982 to 3 June 1985 24 October 1983 to 21 March 1984 19 July 1982 to 3 June 1985

Permission for Intv. Merits

15 December 1979 to 24 May 1980 25 November 1981 to 12 October 1984

29 November 1979 to 12 May 1981 29 November 1979 to 15 December 1979

25 November 1978 to 24 February 1982 28 January 1981 to 14 April 1981 25 November 1978 to 24 February 1982

Duration

Total

Interim measures of protection Preliminary objection Total

Total

Permission for Intv. Judgment

Total

Proceedings –

Public Hearings

2 years/10 months/ 15 days

2 years/10 months/ 15 days 4 months/27 days

1 year/17 days

5 months/9 days

16 days

25 to 30 January and 21 March 1984 26 November to 3 December and 6 to 14 December 1984 and 4 to 22 February 1985 and 3 June 1985

18 to 20 March and 24 May 1980 29 January and 2 to 19 April and 3 to 11 May and 12 October 1984 –

18 to 20 March and 24 May 1980

19 to 23 March and 14 April 1981 3 years/2 months/30 days 16 to 25 September and 29 September to 21 October 1981 and 24 February 1982 1 year/5 months/13 days –

2 months/16 days

3 years/2 months/30 days

Total

664 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Total

Interim Measures of Protection Merits

Total

Proceedings

Application for Revision and Interpretation of the Judgment of 24 February 1982 (Tunisia/Libya) Border and Transborder Armed Actions (Nicaragua v. Costa Rica)

Total

Total

Interim measures of protection Declaration of Military and Paramilitary Activities Intv. in and against Nicaragua Preliminary (Nicaragua v. USA) objection Merits

Frontier Dispute (Burkina Faso/ Republic of Mali)

Case

(cont.)

1 month/20 days

15 August to 4 October 1984

28 July 1986 to 19 August 1987 1 year/22 days

26 November 1984 to 27 June 1 year/7 months/1 day 1986 27 July 1984 to 10 December 4 months/13 days 1985

13 April to 26 November 1984 7 months/13 days

7 years/5 months/ 17 days 1 month/1 day

11 months/12 days

8 days

3 years/2 months/8 days

Total

10 January 1986 to 22 December 1986 9 April 1984 to 26 September 1991 9 April to 10 May 1984

14 October 1983 to 22 December 1986 2 January 1986 to 10 January 1986

Duration

None

8 to 18 October and 26 November 1984 12 to 20 September 1985 and 27 June 1986 13 to 18 June 1985 and 10 December 1985

None

25 and 17 April and 10 May 1984

–

9, 10 January 1986

16 to 26 June and 22 December 1986

–

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 665

6 February 1987 to 20 July 1989 Permission for 13 February and 2 March Intv. 1989 16 August 1988 to 14 June 1993 17 May 1989 to 22 February 1996

Total

Total

Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) Aerial Incident of 3 July 1988 (Iran v. USA)

21 March 1988 to 31 March 1988* (*withdrawal of request for provisional measures) 28 July 1986 to 20 December 1988 11 December 1986 to 11 September 1992 17 November 1989 to 13 December 1990 11 December 1986 to 11 September 1992

28 July 1986 to 27 May 1992

Duration

Total

Permission to intervene Merits

Interim measures of protection Preliminary objection Total

Total

Proceedings

Elettronica Sicula S.p.A (ELSI) (USA v. Italy)

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)

Border and Transborder Armed Actions (Nicaragua v. Honduras)

Case

(cont.)

6 years/9 months/5 days

4 years/9 months/ 29 days

2 years/5 months/ 14 days 19 days

4 years/9 months

27 November 1987 and 13 February to 20 July 1989 11 to 15 and 18 and 20 to 22 and 25, 27 January 1993 None

5 to 8 June and 13 September 1990 15 to 19 and 22 to 26 April and 1 to 3 and 6 to 10 and 13 to 17 and 21 to 23 and 27 to 31 May and 3 to 7 and 10 to 14 June 1991 and 11 September 1992 –

6 to 15 June and 20 December 1988 –

2 years/4 months/ 23 days 4 years/9 months 1 year/27 days

None

–

Public Hearings

5 years/10 months/ 30 days 10 days

Total

666 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Total

Total

East Timor (Portugal v. Australia)

Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal)

Interim Measures of Protection

–

Public Hearings

12 February 1990

17 May 1991 to 10 September 1992 23 May to 29 July 1991

2 months/6 days

1 year/3 months/24 days

1, 2, 4, 5 July 1991

–

3 to 5 April and 8, 11 April 1991 14 to 18 and 21, 22, 25 and 28 to 30 June and 1, 2 and 6 to 8 and 12 to 14 July 1993 22 February 1991 to 30 June 4 years/4 months/8 days 30 January to 1995 3 February and 6 to 10 and 13, 16 February 1995 12 March 1991 to 8 November 4 years/7 months/27 days None 1995

1 month/15 days

11 to 13 and 15, 18, 19, 21, 22 November 1991 and 26 June 1992 2 years/2 months/20 days –

1 year/5 months/10 days

4 years/3 months/25 days

Total

2 March 1990 to 12 November 1 year/8 months/10 days 1991 31 August 1990 to 3 February 3 years/5 months/3 days 1994

23 August 1989 to 12 November 1991 18 January 1990 to 2 March 1990

19 May 1989 to 13 September 1993 16 January 1991 to 26 June 1992

Duration

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Passage Through the Great Belt (Finland v. Denmark)

Total

Territorial Dispute (Libya/Chad)

Total

Interim measures of protection Merits

Total

Preliminary objection

Total

Proceedings

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

Certain Phosphate Lands in Nauru (Nauru v. Australia)

Case

(cont.)

667

Interim Measures of Protection Preliminary objection Total

Preliminary objection Merits

Oil Platforms (Iran v. USA)

Interim Measures of Protection Preliminary objection Total

20 June 1995 to 27 February 1998 2 November 1992 to 6 November 2003 16 December 1993 to 12 December 1996 8 June 1993 to 2 November 2003

16 June 1995 to 27 February 1998 3 March 1992 to 27 February 1998 3 March to 14 April 1992

– 28 February to 11 March 1994

Public Hearings

10 years/4 months/ 26 days

3 year/11 months/26 days

11 years/5 days

2 years/8 months/7 days

1 month/11 days

16, 17, 19, 20, 23, 24 September 1996 17, 18, 19, 21, 24, 25, 26, 28 February 2003 and 3, 5, 7 March 2003

14, 15, 17, 20 October 1997 –

26 to 28 March 1992

13, 14 and 17, 20, 22 October 1997 5 years/11 months/24 days –

2 years/8 months/11 days

26, 28 March 1992

29 to 31 May 2000 and 5, 6, 8, 9 and 13, to 15 and 20 to 22, 27, 29 June 2000 5 years/11 months/24 days –

3 March 1992 to 27 February 1998 3 March 1992 to 14 April 1992 1 months/11 days

Merits

Total

Total

8 July 1991 to 16 March 2001 9 years/8 months/8 days 14 July 1991 & 18 August 1991 2 years/11 months/17 days to 1 July 1994 and 15 February 1995 15 February 1995 to 16 March 6 years/1 month/1 day 2001

Duration

Total Preliminary objection

Proceedings

Lockerbie (Libya v. USA)

Lockerbie (Libya v. UK)

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

Case

(cont.)

668 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

The Gabčikovo-Nagymaros Project (Hungary/Slovakia)

Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))

Case

(cont.)

Additional judgment

Total Judgment

Provisional measures Additional provisional measures Preliminary objection Merits

Total

Proceedings

3 September 1998 to continues

NA

NA 4 years/2 months/ 23 days

12 years/10 months/ 12 days

15 April 1994 to 26 February 2007

2 July 1993 to continues 2 July 1993 to 25 September 1997

15 days

1 month/17 days

27 July 1993 to 13 September 1993 26 June 1995 to 11 July 1996

13 years/11 months/ 7 days 19 days

Total

20 March 1993 to 26 February 2007 20 March to 8 April 1993

Duration

27 February to 3 and 6 to 10 and 13 to 17 and 20, 23, 24, 27, 28 March and 18 to 21 and 2 April and 2, 4, 8, 9 May 2006 – 3 to 7 and 24 to 27 March and 10, 11, 14, 15 April 1997 None

29 April to 3 May 1996

25, 26 August 1993

1, 2 April 1993

–

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 669

Vienna Convention on Consular Relations (Paraguay v. USA)

Request for an Examination of the Situation in Accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Kasikili/Sedudu Island (Botswana/Namibia)

Fisheries Jurisdiction (Spain v. Canada)

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)

Case

(cont.)

3 April 1998 to 10 November 1998 3 April to 9 April 1998

Total

Interim Measures of Protection

29 May 1996 to 13 December 1999

2 years/11 months/ 20 days 3 years/8 months/6 days

21 October 1999 to 10 October 2002 28 March 1995 to 4 December 1998 21 April 1995 to 4 December 1998 21 August 1995 to 22 September 1995 28 August 1995 to 22 September 1995

6 days

7 months/7 days

3 years/6 months/ 14 days

25 days

1 month/1 day

3 year/7 months/13 days

2 years/5 months/ 29 days 3 months/21 days

10 years/3 months/ 10 days 1 month/3 days

Total

13 December 1995–11 June 1998 30 June to 21 October 1999

29 March 1994 10 October 2002 12 February–15 March 1996

Duration

Total

Preliminary objection

Preliminary objection Total

Total

Interim measures of protection Preliminary objection Permission for Intv. Merits

Total

Proceedings

7, 9 April 1998

15 to 18 and 22 to 25 February and 1, 2 and 4, 5 March 1999 –

11, 12 September 1995

9 to 12 and 15 and 17 June 1998 –

18 February to 21 March 2002 –

None

2 to 11 March 1998

5, 6, 8 March 1996

–

Public Hearings

670 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Legality of Use of Force (Yugoslavia v. USA)

LaGrand Case (Germany v. USA)

Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. DR Congo)

Case Concerning Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indonesia v. Malayasia)

Request for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary Dispute between Cameroon and Nigeria (Cameroon v. Nigeria)

Case

(cont.)

Total Interim Measures of Protection

Total Interim Measures of Protection Merits

Preliminary objections Merits

Total

25, 26, 28, 29 June 2001 3, 4, 6, 7, 10, 12 June 2002 –

17 February 1999

Public Hearings

4 years/7 months/22 days 27 November to 1 December 2006 3 years/6 months/7 days 19, 26, 28, 29 April 2010 2 years/3 months/26 days – 2 days None

11 years/11 months/3 days

2 years/11 months/ 16 days 1 year/11 months/16 days

4 months/27 days

Total

3 March 1999 to 27 June 2001 2 years/3 months/25 days 13, 14, 16, 17 November 2000 29 April 1999 to 2 June 1999 1 month/4 days – 29 April 1999 to 2 June 1999 1 month/4 days 10 to 12 May 1999

2 November 1998 to 17 December 2002 2 November 1999 to 17 December 2002 28 December 1998 to 30 November 2010 3 October 2002 to 24 May 2007 24 May 2007 to 30 November 2010 2 March 1999 to 27 June 2001 2 to 3 March 1999

Total

Merits

28 October 1998 to 25 March 1999

Duration

Total

Proceedings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 671

Total

Proceedings

Interim Measures of Protection Preliminary objections Total

Legality of Use of Force (Serbia and Montenegro v. France)

Legality of Use of Force Interim (Serbia and Montenegro v. Germany) Measures of Protection Preliminary objections

Interim Measures of Protection Preliminary objection Total

Legality of Use of Force (Serbia and Montenegro v. Canada)

Legality of Use of Force Interim (Serbia and Montenegro v. Belgium) Measures of Protection Preliminary objection Total

Case

(cont.) Total

Public Hearings

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004 29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004 29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004 29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

Duration

672 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Interim Measures of Protection Preliminary objections Total

Legality of Use of Force (Serbia and Montenegro v. Netherlands)

Legality of Use of Force Interim (Serbia and Montenegro v. Portugal) Measures of Protection Preliminary objections Total Interim Legality of Use of Force Measures of (Yugoslavia v. Spain) Protection

Interim Measures of Protection Preliminary objections Total

Total

Proceedings

Legality of Use of Force (Serbia and Montenegro v. Italy)

Case

(cont.) Total

Public Hearings

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004 29 April 1999 to 2 June 1999 1 month/5 days – 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004 29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21 to 23 April 1999 2004 29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

Duration

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 673

Total

Proceedings

Armed Activities on the Territory Total of the Congo (DR Congo v. Rwanda) Total Application of The Convention On Preliminary The Prevention And Punishment objection Of The Crime Of Genocide (Croatia v. Serbia)

Armed Activities on the Territory Interim of the Congo (DR Congo v. Uganda) Measures of Protection Merits

Legality of Use of Force (Serbia Interim and Montenegro v. United Kingdom) Measures of Protection Preliminary objections Total Legality of use of Force Interim (Yugoslavia v. U.S.A.) Measures of Protection Armed Activities on the Territory Total of the Congo (DR Congo v. Burundi) Total

Case

(cont.) Total

Public Hearings

23 June 1999 to 30 January 2001 2 July 1999 to continues 2 July 1999 to 18 November 2008

6 July 2000 to 19 December 2005

23 June 1999 to 30 January 2001 23 June 1999 to 19 December 2005 19 June to 1 July 2000

–

– 26 to 30 May 2008

NA 9 years/4 months/ 17 days

1 year/7 months/8 days

16 October 2001 and 11 to 13 and 15 and 18 to 20 and 22, 25, 27, 29 April 2005 None

26, 28 June 2000

None

5 years/5 months/14 days

12 days

NA

1 year/7 months/8 days

29 April 1999 to 20 December 5 years/7 months/20 days 19, 21, 22 and 23 April 2004 1999 29 April 1999 to 2 June 1999 1 month/5 days – 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

29 April 1999 to 20 December 5 years/7 months/20 days – 2004 29 April 1999 to 2 June 1999 1 month/5 days 10 to 12 May 1999

Duration

674 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Interim Measures of Protection Merits

Total

Preliminary objection Total

Total

Proceedings

Application For Revision Of The Total Judgment Of 11 July 1996 In The Case Concerning Application Of Preliminary The Convention On The Prevention objections And Punishment Of The Crime Of Genocide (Yugoslavia v. Bosnia and Herzegovina) Total Case concerning certain Property (Liechtenstein v. Germany) Preliminary objections

Arrest Warrant of 11 April 2000 (DR Congo v. Belgium)

Maritime Delimitation between Cameroon and Honduras in the Caribbean Sea (Nicaragua v. Honduras)

Aerial Incident of 10 August 1999 (Pakistan v. India)

Case

(cont.)

1 year/9 months/ 3 days 1 year/9 months/ 3 days

2 years/8 months/ 10 days 2 years/7 months/ 15 days

1 June 2001 to 10 February 2005 27 June 2002 to 10 February 2005

9 months/4 days

1 month/21 days

1 year/3 months/29 days

7 years/10 months/1 day

7 months/19 days

9 months

Total

11 May 2001 to 14 February 2002 24 April 2001 to 3 February 2003 24 April 2001 to 3 February 2003

17 October 2000 to 14 February 2002 17 October 2000 to 8 December 2000

21 September 1999 to 21 June 2000 2 November 1999 to 21 June 2000 8 December 1999 to 8 October 2007

Duration

14 and 16 to 18 June 2004

–

4, 5, 6 and 7 November 2002

4 to 7 November 2002

15 to 19 October 2001

20 to 23 November 2000

–

5 to 23 March 2007

3 to 6 April 2000

–

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 675

9 months/11 days

20 June 2003 to 31 Match 2004

Interim Measures of Protection Merits

Avena and other Mexican Nationals (Mexico v. U.S.A.)

1 year/2 months/ 22 days 27 days

9 January 2003 to 31 March 2004 9 January 2003 to 5 February 2003

Interim Measures of Protection Total

9 December 2002 to 16 November 2010 9 December 2002 to 17 June 2003

Total

Certain Criminal Proceedings in France (Republic of the Congo v. France)

7 years/11 months/ 7 days 6 months/8 days

10 September 2002 to 18 December 2003

Total

1 year/3 months/8 days

28 May 2002 to 3 February 2006

Total

4 years/4 months/ 22 days 3 years/2 months/ 9 days 3 years/8 months/ 3 days

NA

Total

Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Application for Revision of the Judgment of 11 September in the Case Concerning the Land, Island And Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El Salvador v. Honduras)

6 December 2001 to continues 21 July 2003 to 13 December 2007 3 May 2002 to 12 July 2005

Duration

Preliminary objections Total

Total

Proceedings

Territorial and Maritime Dispute (Nicaragua v. Colombia) Frontier Dispute (Benin/Niger)

Case

(cont.)

15, 16, 18, 19 December 2003

21 January 2003

–

28, 29 April 2003

–

8, 9, 10, 12 September 2003

13 June to 14 June 2002; 4 July to 8 July 2005

7, 8, 10, 11 March 2005

4 to 8 June 2007

–

Public Hearings

676 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Case concerning certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France)

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Maritime Delimitation in the Black Sea (Romania v. Ukraine) Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) Case Concerning the Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland)

Case

(cont.)

–

21 January to 29 January 2008

14 September to 2 October 2009 –

18, 19 December 2006

8, 9 June 2006

None

2 to 19 September 2008 2 to 12 March 2009

6 November to 23 November 2007

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Merits

Total

3 years/2 months/ 27 days 2 year/4 months/ 26 days 2 year/4 months/ 26 days

4 May 2006 to 13 July 2006

Interim Measures of Protection Interim Measures of Protection Merits

3 years/11 months/ 16 days 8–9 June 2006

24 January 2007 to 20 April 2010 9 January 2006 to 4 June 2008 9 January 2006 to 4 June 2008

4 May 2006 to 20 April 2010

Total

1 month/14 days

8 months/19 days

26 April 2006 to 9 June 2006

Total

4 years/4 months/ 19 days 3 years/9 months/ 15 days

4 years/10 months

Total

4 May 2006 to 23 January 2007

16 September 2004 to 3 February 2009 29 September 2005 to 13 July 2009

Total

Total

24 July 2003 to 23 May 2008

Duration

Total

Proceedings

677

Certain Questions concerning Diplomatic Relations (Honduras v. Brazil)

Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation) Jurisdictional Immunities of the State (Germany v. Italy) Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

Maritime Dispute (Peru v. Chile) Aerial Herbicide Spraying (Ecuador v. Colombia) Request for the Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United states of America)

Case

(cont.)

Interim Measures of Protection Total

Total

Total Interim Measures of Protection Total

28 October 2009 to 12 May 2010

23 December 2008 to continues 19 February 2009 to continues 19 February 2009 to 28 May 2009

17 July 2008 to 19 January 2009 12 August 2008 to continues 12 August 2008 to 15 October 2008

19 June 2008 to 19 January 2009 19–20 June 2008

Total

Interim Measures of Protection Merits

16 January 2008 to continues 31 March 2008 to continues

Duration

Total Total

Proceedings

6 months/15 days

3 months/9 days

NA

NA

NA 2 month/3 days

7 months/1 day

1 month/11 days

7 months/1 day

NA NA

Total

–

None

6, 7, 8 April 2009

None

None

None 8, 9, 10 September 2008

None

19, 20 June 2008

None None

Public Hearings

678 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Interpretation of The Judgment Of 15 June 1962 In the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand)

Whaling in the Antarctic (Australia v. Japan) Frontier Dispute (Burkina Faso/ Niger) Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

Case

(cont.)

18 November 2010 to continues 18 November 2010 to continues

Total

28 April 2011 to continues

20 July 2010 continues

Total

Interim Measures of Protection Total

31 May 2010 to continues

Duration

Total

Proceedings

NA

NA

NA

NA

NA

Total

None

None

None

None

None

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 679

4 months/27 days

3 November 1949 to 30 March 1950 2 May 1950 to 18 July 1950 28 November 1949 to 3 March 1950 27 December 1949 to 11 July 1950

22 March and 1 June 1956

6 months/1 day 10 months/21 days 6 months/9 days 2 months/14 days 6 months/23 days

6 December 1954 to 7 June 1955 2 December 1955 to 23 October 1955 22 December 1955 to 1 July 1956 25 March 1959 to 8 June 1960 27 December 1961 to 20 July 1962

26 April to 4 May and 8 June 1960 14 to 21 May and 20 July 1962

23 October 1956

6 months/22 days

21 December 1953 to 13 July 1954

Effect of Awards of Compensation made by the UNAT Voting Procedure Concerning the Territory of South West Africa Judgments of Administrative Tribunal of ILO upon Complaints Made against UNESCO Admissibility of Hearings of Petitioners by the Committee on South West Africa Constitution of the Maritime Safety Committee of the IGMCO Certain Expenses of United Nations

6 months/8 days

20 November 1950 to 28 May 1951

6 months/14 days

3 months/5 days

7 to 9 March and 9, 11 April 1949 28 February and 1 to 3 March and 27, 28 June and 18 July 1950 16 February and 3 March 1950 16 to 23 May and 11 July 1950 10 to 14 April and 28 May 1951 10 to 14 June and 13 July 1954 7 June 1955

4 month/4 days

7 December 1948 to 11 April 1949

Public Hearings 22 to 24 April 1948

Total

29 November 1947 to 28 May 1948 5 months/30 days

Duration

Reservations to the Genocide Convention

Competence of the General Assembly for the Admission of a State to the UN International Status of South West Africa

Conditions of Admission of a State to Membership in the UN (Art. 4 Charter) Reparation for Injuries Suffered in the Service of the UN Interpretation of Peace Treaties with Bulgaria, Hungary and Romania

Advisory Opinion

Advisory Opinions

680 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

11 months/22 days

6 months/2 days 2 years/10 months/ 5 days

13 June 1989 to 15 December 1989 3 September 1993 to 8 July 1996

10 September 1984 to 27 May 1987 2 years/8 months/ 17 days 2 March 1988 to 26 April 1988 1 month/24 days

28 July 1981 to 20 July 1982

28 May 1980 to 20 December 1980 6 months/22 days

9 months/25 days

21 December 1974 to 16 October 1975

Interpretation of Agreement of 25 March 1951 between the WHO and Egypt Application for Review of UNAT Judgment No. 273 Application for Review of UNAT Judgment No. 333 Applicability of the Obligation to Arbitrate under section 21 of the UN HQ Agreement of 26 June 1947 Application of Article VI, Section 22 of the Convention on the Privileges and Immunities of the UN Legality by a State of the Use of Nuclear Weapons in Armed Conflict

1 year/9 days

3 July 1972 to 12 July 1973

Application for Review of UNAT Judgment No. 158 Western Sahara

10 months/11 days

Total

10 August 1970 to 21 June 1971

Duration

Legal Consequences for States of the Continued Presence of South Africa in Namibia

Advisory Opinion

(cont.)

30 October and 1 to 3 and 6, 7, 9, 10 and 13 to 15 November 1995

4 and 5 October and 15 December 1989

11, 12 and 26 April 1988

27 May 1987

12 to 16 May and 16 to 30 July and 16 October 1975 21 to 23 October and 20 December 1980 20 July 1982

27 January and 8 February to 17 March and 21 June 1971 12 July 1973

Public Hearings

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 681

8 months/19 days 7 months NA

10 August 1998 to 29 April 1999 10 December 2003 to 9 July 2004 26 April 2010 to continues

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights Legal Consequences of the Construction Of A Wall in the Occupied Palestinian Territory Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development

1 year, 6 months/ 18 days

Total

20 December 1994 to 8 July 1996

Duration

Legality of the Threat or Use of Nuclear Weapons

Advisory Opinion

(cont.)

NA

23, 24, 25 February 2004

30 October and 1 to 3 and 6, 7, 9, 10 and 13 to 15 November 1995 7, 8, 10 December 1998

Public Hearings

682 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Applicant/Respondent Permanent Court of International Justice State

Applicant

Respondent

Special Agreement

Africa (None) Asia 1 2 3

China Japan Turkey

1

2

1

2

Eastern Europe 1 2 3 4 5 6 7

Bulgaria Czechoslovakia Estonia Hungary Lithuania Poland Yugoslavia

1 2 1 1

2 3 2 9 2

1

1 1

Latin America and Caribbean 1

Brazil

1 WEOG

1 2 3 4 5 6 7 8 9 10 11 12 13

Belgium Denmark France Germany Greece Italy Liechtenstein Netherlands Norway Spain Sweden Switzerland UK

Total

33

3 1 2 9 4 3 1 1

1 2

1 1 1 2

1

2

2 3 9 1 2 1 2 1 1 3 2

684

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis International Court of Justice State

Applicant

Respondent

Special Agreement

Africa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Benin Botswana Burkina Faso Burundi Cameroon Chad Djibouti DR Congo Egypt Ethiopia Guinea-Bissau Liberia Libya Namibia Niger Nigeria Republic of Guinea Republic of Mali Rwanda Senegal South Africa Tunisia Uganda

1 1 1

2 1 6

1 1 2 1

1 1

1 2 1 2

1 1

1 1

2 3 2 1

4 1 2 1

2

Asia 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Bahrain Cambodia India Indonesia Iran Israel Japan Lebanon Malaysia Nauru Pakistan Qatar Thailand Turkey Singapore

2 1 2 1

1 2 1

1 3 2 1 2

1

2

1 2 1

1



World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

685

(cont.) State

Applicant

Respondent

Special Agreement

Eastern Europe 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Albania Bosnia and Herzegovina Bulgaria Croatia Czechoslovakia Georgia Hungary Romania Russian Federation Serbia and Montenegro Slovakia USSR (now Russian Federation) Ukraine Yugoslavia

1 1

1

3

2

1 1

1

1

1 1

8

4

1

1

4

Latin American & Caribbean 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Argentina Brazil Chile Colombia Commonwealth of Dominica Costa Rica Ecaudor El Salvador Guatemala Honduras Nicaragua Paraguay Peru Uruguay

1 1

1 2 2

2 1 1 1

1

1 1 2 2

2 5 1 1

2 1

1 1 1

WEOG 1 2 3 4 5

Australia Belgium Canada Denmark Federal Republic of Germany

2 3 1 1

2 3 3 1 1

1 1 1 2

686

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

(cont.) State 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Finland France Germany Greece Iceland Italy Liechtenstein Malta Mexico Netherlands New Zealand Norway Portugal Spain Sweden Switzerland UK USA

Total 89

Applicant

Respondent

Special Agreement

1 5 1 2

8 2

1

1 3 2 1 2 2 1 1 7 9

2 4 1 2

2

3 2 4 1 1 6 14

1 1

 1. Customs Regime between Germany and Austria

 1. Questions Concerning the Acquisition of Polish Nationality

 1. Interpretation of The Greco-Bulgarian Agreement of 9 December 1927 2. Greco-Bulgarian Communities

Austria (1-1)

Brazil (1-0)

Bulgaria (1-1)

 1. Competence of the ILO (Methods of Agriculture Production)

 1. Status of Eastern Carelia

 1. Competence of the ILO (Agriculture Workers) 2. Competence of the ILO (Methods of Agriculture Production) 3. Nationality of Decrees Issued in Tunis

Estonia (1-0)

Finland (1-1)

France (4-4)

Czechoslovakia  1. Delimitation of the Polish(2-2) Czechoslovakian Frontier 2. Customs Regime between Germany and Austria

 1. Monastery of Saint-Naoum (Albanian Frontier) 2. Minority Schools in Albania

Written Statement(s)

Albania (2-2)

State

Oral Statement(s)

 1. Competence of the ILO (Agriculture Workers) 2. Competence of the ILO (Methods of Agriculture Production) 3. Nationality of Decrees Issued in Tunis

 1. Status of Eastern Carelia

 1. Delimitation of the Polish-Czechoslovakian Frontier 2. Customs Regime between Germany and Austria

 1. Interpretation of The Greco-Bulgarian Agreement of 9 December 1927 2. Greco-Bulgarian Communities

 1. Customs Regime between Germany and Austria

 1. Monastery of Saint-Naoum (Albanian Frontier) 2. Minority Schools in Albania

Permanent Court of International Justice

States submitting Written Statement/ Oral Statement

 1. 2. 3. 4.

Polish Postal Service in Danzig Jurisdiction of the Courts of Danzig City of Danzig and ILO Access to, or Anchorage in the Port of Danzig of Polish War Vessels 5. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory 6. Certain Danzig Legislative Decrees

 1. Questions Relating to Settlers of German Origin in Poland 2. Questions Concerning the Acquisition of Polish Nationality 3. Access to German Minority Schools in Upper Silesia 4. Customs Regime between Germany and Austria 5. Interpretation of 1919 Convention concerning Employment of Women during Night

 1. Monastery of Saint-Naoum (Albanian Frontier) 2. Exchange of Greek and Turkey Populations 3. Interpretation of the Greco-Turkish Agreement of 1 December 1926 4. Greco-Bulgarian Communities

Germany (5-5)

Greece (5-5)

3. Jurisdiction of the European Commission of the Danube between Galatz and Braila 4. Customs Regime between Germany and Austria

Written Statement(s)

Free City of Danzig (6-5)

State

(cont.)

 1. Monastery of Saint-Naoum (Albanian Frontier) 2. Exchange of Greek and Turkey Populations 3. Interpretation of the Greco-Turkish Agreement of 1 December 1926 4. Greco-Bulgarian Communities

 1. Questions Relating to Settlers of German Origin in Poland 2. Questions Concerning the Acquisition of Polisn Nationality 3. Access to German Minority Schools in Upper Silesia 4. Customs Regime between Germany and Austria 5. Interpretation of 1919 Convention concerning Employment of Women during Night

 1. Jurisdiction of the Courts of Danzig 2. City of Danzig and ILO 3. Access to, or Anchorage in the Port of Danzig of Polish War Vessels 4. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory 5. Certain Danzig Legislative Decrees

3. Jurisdiction of the European Commission of the Danube between Galatz and Braila 4. Customs Regime between Germany and Austria

Oral Statement(s)

688 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Railway Traffic between Lithuania and Poland

 1. Designation of the Worker’s Delegate for the  1. Designation of the Worker’s Delegate for the Netherlands at the International Labour Conference Netherlands at the International Labour Conference

 1. Questions Relating to Settlers of German Origin in Poland 2. Questions Concerning the Acquisition of Polisn Nationality 3. Delimitation of the Polish-Czechoslovakian Frontier 4. Polish Postal Service in Danzig 5. Jurisdiction of the Courts of Danzig 6. City of Danzig and ILO 7. Railway Traffic between Lithuania and Poland 8. Access to, or Anchorage in the Port of Danzig of Polish War Vessels 9. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory

Lithuania (1-1)

Netherlands (1-1)

Poland (9-9)

 1. Questions Relating to Settlers of German Origin in Poland 2. Questions Concerning the Acquisition of Polisn Nationality 3. Delimitation of the Polish-Czechoslovakian Frontier 4. Jurisdiction of the Courts of Danzig 5. City of Danzig and ILO 6. Access to German Minority Schools in Upper Silesia 7. Railway Traffic between Lithuania and Poland 8. Access to, or Anchorage in the Port of Danzig of Polish War Vessels 9. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory

 1. Railway Traffic between Lithuania and Poland

 1. Jurisdiction of the European Commission of the Danube between Galatz and Braila 2. Customs Regime between Germany and Austria

 1. Competence of the ILO (Agriculture Workers) 2. Customs Regime between Germany and Austria

Italy (2-2)

4. Interpretation of The Greco-Bulgarian Agreement of 9 December 1927 5. Minority Schools in Albania

Oral Statement(s)

 1. Competence of the ILO (Agriculture Workers)

 1. Competence of the ILO (Methods of Agriculture Production)

4. Interpretation of The Greco-Bulgarian Agreement of 9 December 1927 5. Minority Schools in Albania

Written Statement(s)

Hungary (0-1)

Haiti (1-0)

State

(cont.)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 689

 1. Status of Eastern Carelia

 1. Designation of the Worker’s Delegate for the Netherlands at the International Labour Conference 2. Competence of the ILO (Agriculture Workers) 3. Competence of the ILO (Methods of Agriculture Production)

 1. Monastery of Saint-Naoum (Albanian Frontier)

 1. Exchange of Greek and Turkey Populations 2. Interpretation of Article 3, paragraph 2 of the Treaty of Lausanne 3. Interpretation of the Greco-Turkish Agreement of 1 December 1926

 1. Interpretation of Article 3, paragraph 2 of the Treaty of Lausanne 2. Nationality of Decrees Issued in Tunis 2. Jurisdiction of the European Commission of the Danube between Galatz and Braila 3. Interpretation of 1919 Convention concerning Employment of Women during Night

Russia (1-0)

Sweden (3-0)

Serb-Croat-Slovene Government (1-1)

Turkey (3-2)

UK (3-5)

 1. Designation of the Worker’s Delegate for the Netherlands at the International Labour Conference 2. Nationality of Decrees Issued in Tunis 2. Competence of the ILO (Agriculture Workers) 3. Interpretation of Article 3, paragraph 2 of the Treaty of Lausanne

 1. Exchange of Greek and Turkey Populations 2. Interpretation of the Greco-Turkish Agreement of 1 December 1926

 1. Monastery of Saint-Naoum (Albanian Frontier)

 1. Jurisdiction of the European Commission of the Danube between Galatz and Braila

 1. Jurisdiction of the European Commission of the Danube between Galatz and Braila

Romania (1-1)

Oral Statement(s)  1. Competence of the ILO (Agriculture Workers)

Written Statement(s)

Portugal (0-1)

State

(cont.)

690 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Written Statement(s)

International Organisations/ Institutions

 1. Competence of the ILO (Methods of Agriculture Production)

ILO (7-6)

Oral Statement(s)

4. Jurisdiction of the European Commission of the Danube between Galatz and Braila 5. Interpretation of 1919 Convention concerning Employment of Women during Night

Oral Statement(s)

 1. Designation of the Worker’s Delegate for the  1. Designation of the Worker’s Delegate for the Netherlands at the International Labour Conference Netherlands at the International Labour Conference 2. Competence of the ILO (Agriculture Workers) 2. Competence of the ILO (Agriculture Workers) 3. Competence of the ILO (Methods of Agriculture 3. Competence of the ILO (Methods of Agriculture Production) Production)

Conference of  1. Monastery of Saint-Naoum (Albanian Frontier) Ambassadors acting on behalf of Britain, France, Italy and Japan (1-0)

Confédération internationale des syndicats agricoles (1-0)

Central  1. Competence of the ILO (Agriculture Workers) Association of French Agriculturists (1-0)

Written Statement(s)

State

(cont.)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 691

 1. Competence of the ILO (Agriculture Workers)

 1. Competence of the ILO 2. Interpretation of 1919 Convention concerning Employment of Women during Night

International Federation of Land Workers (1-0)

International Federation of Trade Unions (2-4)

International  1. Competence of the ILO (Agriculture Workers) Federation of Christian Unions of Land Workers (1-0)

 1. Designation of the Worker’s Delegate for the Netherlands at the International Labour Conference 2. Competence of the ILO (Agriculture Workers) 3. Competence of the ILO 4. Interpretation of 1919 Convention concerning Employment of Women during Night

 1. Designation of the Worker’s Delegate for the Netherlands at the International Labour Conference 2. Competence of the ILO 3. Interpretation of 1919 Convention concerning Employment of Women during Night

 1. Interpretation of 1919 Convention concerning Employment of Women during Night

International Confederation of Christian Trade Unions (1-3)

4. Competence of the ILO 5. City of Danzig and ILO 6. Interpretation of 1919 Convention concerning Employment of Women during Night

Oral Statement(s)

 1. Competence of the ILO (Agriculture Workers)

5. Competence of the ILO 6. City of Danzig and ILO 7. Interpretation of 1919 Convention concerning Employment of Women during Night

Written Statement(s)

International Agriculture Commission (0-1)

State

(cont.)

692 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Competence of the ILO (Agriculture Workers)

International Federation of Agriculture Trades Unions (1-0)

League of Nations (10-1)

 1. Competence of the ILO

Oral Statement(s)

 1. Competence of the ILO (Methods of Agriculture  1. Railway Traffic between Lithuania and Poland Production) 2. Status of Eastern Carelia 2. Questions Relating to Settlers of German Origin in Poland 3. Questions Concerning the Acquisition of Polisn Nationality 4. Delimitation of the Polish-Czechoslovakian Frontier 5. Monastery of Saint-Naoum (Albanian Frontier) 6. Exchange of Greek and Turkey Populations 7. Jurisdiction of the European Commission of the Danube between Galatz and Braila 8. Jurisdiction of the Courts of Danzig 9. Access to German Minority Schools in Upper Silesia

International  1. Competence of the ILO Organisation of Industrial Employers (1-1)

 1. Competence of the ILO (Agriculture Workers) 2. Competence of the ILO (Methods of Agriculture Production)

Written Statement(s)

International Institute of Agriculture (2-0)

State

(cont.)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 693

  1. Access to German Minority Schools in Upper Silesia

10. Access to, or Anchorage in the Port of Danzig of Polish War Vessels 11. Greco-Bulgarian Communities

Written Statement(s)

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Cameroon (1-0)

Africa

 1. Legality of the Threat or Use of Nuclear Weapons

Written Statement(s)

Burundi (1-0)

Algeria (0-2)

State

Oral Statement(s)

Oral Statement(s)

 1. Western Sahara 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

International Court of Justice

Netherlands General   1. Designation of the Worker’s Delegate for the Confederation of Netherlands at the International Labour Conference Trade Unions (1-0)

Mixed Commission for Upper Silesia (1-0)

State

(cont.)

694 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Namibia (1-0)

Senegal (1-0)

South Africa (1-1)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis  1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Western Sahara

 1. Constitution of the Maritime Safety Committee

 1. Western Sahara

 1. Constitution of the Maritime Safety Committee

Liberia (1-1)

Mauritania (1-0)

 1. Legality of the Threat or Use of Nuclear Weapons

Lesotho (1-0)

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Guinea (1-0)

 1. Interpretation of WHO-Egypt Agreement 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 3. Legality of the Threat or Use of Nuclear Weapons

Oral Statement(s)

Madagascar (0-1)

 1. Competence of the GA for the admission of a State to the UN 2. International Status of South-West Africa 3. Effect of Compensation Awards made by the UNAT* 4. Interpretation of WHO-Egypt Agreement 5. Legality of the Threat or Use of Nuclear Weapons 6. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Written Statement(s)

Egypt (6-3)

State

(cont.)

695

China (7-0)

Bangladesh (0-1)

Azerbaijan (1-0)

 1. Conditions of Admission of a State to Membership in the UN 2. Reparations for Injuries 3. Effect of Compensation Awards made by the UNAT 4. Voting Procedures on Questions Relating to Reports and Petitions concerning the Territory of SouthWest Africa* 5. ILOAT Judgments upon complaints against UNESCO 6. Admissibility of Hearings by the Committee on South-West Africa 7. Constitution of the Maritime Safety Committee

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Asia

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

Zimbabwe (0-2)

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Oral Statement(s)

 1. Western Sahara

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Written Statement(s)

Zaire (0-1)

Sudan (1-1)

State

(cont.)

696 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Conditions of Admission of a State to Membership in the UN 2. Reparations for Injuries 3. International Status of South-West Africa 4. Voting Procedures on Questions Relating to Reports and Petitions concerning the Territory of South-West Africa 5. Constitution of the Maritime Safety Committee 6. Legal Consequences for States of the Continued Presence of South Africa in Namibia 7. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 8. Legality of the Threat or Use of Nuclear Weapons

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

India (8-1)

Indonesia (1-3)

Iran (2-2)

Written Statement(s)

Democratic People’s Republic of Korea (3-0)

State

(cont.)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis  1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Oral Statement(s)

697

Written Statement(s)

 1. Conditions of Admission of a State to Membership in the UN 2. Effect of Compensation Awards made by the UNAT 3. Interpretation of WHO-Egypt Agreement

 1. Reservations to the Genocide Convention 2. Voting Procedures on Questions Relating to Reports and Petitions concerning the Territory of South-West Africa* 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Certain Expenses of the United Nations 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 3. Legality of the Threat or Use of Nuclear Weapons 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Reservations to the Genocide Convention 2. Interpretation of WHO-Egypt Agreement 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

 1. Interpretation of WHO-Egypt Agreement 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

State

Iraq (3-0)

Israel (3-1)

Japan (4-2)

Jordan (3-1)

Kazakhstan (1-0)

Kuwait (2-0)

(cont.)

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Reservations to the Genocide Convention

Oral Statement(s)

698 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons 3. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Western Sahara 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. International Status of South-West Africa 2. Reservations to the Genocide Convention 3. Effect of Compensation Awards made by the UNAT 4. Certain Expenses of the United Nations* 5. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Malaysia (4-4)

Morocco (2-0)

Pakistan (1-1)

Palestine (1-1)

Philippines (5-2)

Written Statement(s)

Lebanon (1-0)

State

(cont.)

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

 1. Western Sahara

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons 3. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 699

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Yemen (1-0)

 1. Legality of the Threat or Use of Nuclear Weapons

 1. Interpretation of Peace Treaties 2. Reservations to the Genocide Convention 3. Certain Expenses of the United Nations

 1. Interpretation of Peace Treaties 2. Competence of the GA for the admission of a State to the UN 3. Reservations to the Genocide Convention 4. Certain Expenses of the United Nations

 1. Interpretation of Peace Treaties 2. Competence of the GA for the admission of a State to the UN 3. Reservations to the Genocide Convention 4. Effect of Compensation Awards made by the UNAT* 5. Certain Expenses of the United Nations

Bosnia and Herzegovina (1-0)

Bulgaria (3-0)

Byelorussian SSR (4-0)

Czechoslovakia (7-1)

Eastern Europe

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Written Statement(s)

Sri Lanka (1-0)

State

(cont.)

 1. Conditions of Admission of a State to Membership in the UN

Oral Statement(s)

700 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Interpretation of Peace Treaties 2. Legal Consequences for States of the Continued Presence of South Africa in Namibia

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Hungary (2-0)

Lithuania (1-0)

 1. Competence of the GA for the admission of a State to the UN

 1. Interpretation of WHO-Egypt Agreement 2. Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Argentina (1-0)

Bolivia (2-0)

Brazil (1-0)

Latin America and Caribbean

 1. Applicability of the Obligation to Arbitrate under UN HQ Agreement

6. Legal Consequences for States of the Continued Presence of South Africa in Namibia 7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Written Statement(s)

German Democratic Republic (1-0)

State

(cont.) Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 701

 1. Western Sahara 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

 1. Western Sahara 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Colombia (2-0)

Costa Rica (2-3)

Cuba (1-1)

 1. Conditions of Admission of a State to Membership in the UN 2. Effect of Compensation Awards made by the UNAT 3. Western Sahara

 1. Conditions of Admission of a State to Membership in the UN

Guatemala (3-0)

Honduras (1-0)

Dominican Republic  1. Western Sahara (1-0)

 1. Effect of Compensation Awards made by the UNAT 2. Western Sahara

Written Statement(s)

Chile (2-0)

State

(cont.)

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons 3. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights

Oral Statement(s)

702 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Effect of Compensation Awards made by the UNAT 2. Certain Expenses of the United Nations* 3. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 4. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Threat or Use of Nuclear Weapons 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Mexico (4-2)

Marshall Islands (2-2)

Australia (5-3)

 1. Conditions of Admission of a State to Membership in the UN

El Salvador (1-0)

 1. Conditions of Admission of a State to Membership in the UN 2. Interpretation of Peace Treaties 3. Certain Expenses of the United Nations 4. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 5. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Oral Statement(s)

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Certain Expenses of the United Nations 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 3. Legality of the Threat or Use of Nuclear Weapons

Western Europe and Other Countries

 1. Effect of Compensation Awards made by the UNAT 2. Western Sahara 3. Legality of the Threat or Use of Nuclear Weapons

Written Statement(s)

Ecuador (3-0)

State

(cont.)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 703

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Conditions of Admission of a State to Membership  1. Certain Expenses of the United Nations in the UN 2. Effect of Compensation Awards made by the UNAT* 3. Certain Expenses of the United Nations 4. Application for Review of UNAT Judgment No. 333 5. Applicability of Privileges and Immunities Convention 6. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Cyprus

 1. Constitution of the Maritime Safety Committee 2. Certain Expenses of the United Nations

 1. Applicability of Privileges and Immunities Convention

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Belize (1-0)

Canada (6-1)

Cyprus (1-0)

Denmark (2-0)

Federal Republic of Germany (1-0)

Federated States of Micronesia (1-0)

 1. Conditions of Admission of a State to Membership in the UN 2. Reparations for Injuries

Oral Statement(s)

 1. Conditions of Admission of a State to Membership in the UN 2. Constitution of the Maritime Safety Committee 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Written Statement(s)

Belgium (3-2)

State

(cont.)

704 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

  1. Legal Consequences for States of the Continued Presence of South Africa in Namibia  2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict  3. Legality of the Threat or Use of Nuclear Weapons

  1. Conditions of Admission of a State to Membership in the UN  2. Reparations for Injuries  3. Effect of Compensation Awards made by the UNAT  4. ILOAT Judgments upon complaints against UNESCO  5. Constitution of the Maritime Safety Committee  6. Certain Expenses of the United Nations  7. Legal Consequences for States of the Continued Presence of South Africa in Namibia  8. Western Sahara  9. Application for Review of UNAT Judgment No. 273 10. Legality of the Use by a State of Nuclear Weapons in Armed Conflict  11. Legality of the Threat or Use of Nuclear Weapons 12. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

France (12-6)

Written Statement(s)

Finland (3-1)

State

(cont.)

 1. Conditions of Admission of a State to Membership in the UN  1. Reparations for Injuries 2. Competence of the GA for the admission of a State to the UN 3. Reservations to the Genocide Convention 4. Effect of Compensation Awards made by the UNAT 5. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 6. Legality of the Threat or Use of Nuclear Weapons

1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 705

Italy (5-4)

 1. Certain Expenses of the United Nations 2. Application for Review of UNAT Judgment No. 333 3. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 4. Legality of the Threat or Use of Nuclear Weapons 5. Constitution of Maritime Safety Committee 6. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Ireland on behalf of  1. Legal Consequences of the Construction of a Wall the European Union in the Occupied Palestinian Territory (1-0)

 1. Certain Expenses of the United Nations 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 3. Legality of the Threat or Use of Nuclear Weapons 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Ireland (3-1)

 1. Constitution of the Maritime Safety Committee 2. Certain Expenses of the United Nations 3. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 4. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights

 1. Certain Expenses of the United Nations

  1. Conditions of Admission of a State to Membership  1. Effect of Compensation Awards made by the UNAT in the UN  2. Effect of Compensation Awards made by the UNAT  3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Greece (3-1)

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

Oral Statement(s)

  1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict  2. Legality of the Threat or Use of Nuclear Weapons  3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Written Statement(s)

Germany (3-2)

State

(cont.)

706 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Reservations to the Genocide Convention 2. Effect of Compensation Awards made by the UNAT 3. Constitution of the Maritime Safety Committee 4. Certain Expenses of the United Nations 5. Legal Consequences for States of the Continued Presence of South Africa in Namibia 6. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 7. Legality of the Threat or Use of Nuclear Weapons 8. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Western Sahara

Malta (1-0)

Nauru (2-0)

Netherlands (8-4)

New Zealand (2-2)

Nicaragua (1-0)

Written Statement(s)

Luxumborg (1-0)

State

(cont.)

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Effect of Compensation Awards made by the UNAT 2. Constitution of the Maritime Safety Committee 3. Certain Expenses of the United Nations 4. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 707

 1. Constitution of the Maritime Safety Committee 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Constitution of the Maritime Safety Committee 2. Western Sahara

Norway (3-2)

Palau

Panama (2-1)

 1. International Status of South-West Africa 2. Reservations to the Genocide Convention 3. Voting Procedures on Questions Relating to Reports and Petitions concerning the Territory of South-West Africa 4. Certain Expenses of the United Nations* 5. Legal Consequences for States of the Continued Presence of South Africa in Namibia

 1. Certain Expenses of the United Nations

Poland (5-1)

Portugal (1-0)

Papua New Guinea  1. Legality of the Use by a State of Nuclear Weapons (1-0) in Armed Conflict

 1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Written Statement(s)

Nigeria (1-1)

State

(cont.)

 1. Conditions of Admission of a State to Membership in the UN

 1. Constitution of the Maritime Safety Committee

 1. Constitution of the Maritime Safety Committee 2. Certain Expenses of the United Nations

 1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Oral Statement(s)

708 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

 1. 2. 3. 4.

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Republic of Moldova (1-0)

Romania (4-0)

Russian Federation (3-2)

Rwanda (1-0)

Samoa (2-2)

San Marino (1-1)

Saudi Arabia (2-1)

Interpretation of Peace Treaties Reservations to the Genocide Convention Certain Expenses of the United Nations Applicability of Privileges and Immunities Convention

 1. Legality of the Threat or Use of Nuclear Weapons

Written Statement(s)

Qatar (1-1)

State

(cont.)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis  1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Legality of the Threat or Use of Nuclear Weapons

Oral Statement(s)

709

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

 1. Certain Expenses of the United Nations 2. Western Sahara 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Effect of Compensation Awards made by the UNAT 2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 3. Legality of the Threat or Use of Nuclear Weapons 4. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights 5. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Constitution of the Maritime Safety Committee 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

 1. Interpretation of WHO-Egypt Agreement 2. Applicability of the Obligation to Arbitrate under UN HQ Agreement 3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Spain (2-0)

Sweden (5-0)

Switzerland (2-0)

Syrian Arab Republic (3-1)

Written Statement(s)

Solomon Islands (2-2)

State

(cont.)

 1. Interpretation of WHO-Egypt Agreement

 1. Western Sahara

 1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 2. Legality of the Threat or Use of Nuclear Weapons

Oral Statement(s)

710 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

  1. Effect of Compensation Awards made by the UNAT

  1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

  1. Reparations for Injuries  2. Interpretation of Peace Treaties  3. Reservations to the Genocide Convention  4. Effect of Compensation Awards made by the UNAT  5. ILOAT Judgments upon complaints against UNESCO  6. Constitution of the Maritime Safety Committee  7. Certain Expenses of the United Nations  8. Legality of the Use by a State of Nuclear Weapons in Armed Conflict  9. Legality of the Threat or Use of Nuclear Weapons 10. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights 11. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

  1. Conditions of Admission of a State to Membership in the UN  2. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Uganda (1-0)

UK (11-8)

Ukraine (2-1)

Written Statement(s)

Turkey (1-0)

Tunisia (0-1)

State

(cont.)

 1. Conditions of Admission of a State to Membership in the UN

 1. Reparations for Injuries 2. Interpretation of Peace Treaties 3. Reservations to the Genocide Convention 4. Effect of Compensation Awards made by the UNAT 5. Admissibility of Hearings by the Committee on South-West Africa 6. Constitution of the Maritime Safety Committee 7. Certain Expenses of the United Nations 8. Legality of the Threat or Use of Nuclear Weapons 9. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

 1. Interpretation of WHO-Egypt Agreement

Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 711

 1. Conditions of Admission of a State to Membership  1. Certain Expenses of the United Nations in the UN 2. Interpretation of Peace Treaties 3. Competence of the GA for the admission of a State to the UN 4. Reservations to the Genocide Convention 5. Effect of Compensation Awards made by the UNAT* 6. Certain Expenses of the United Nations 7. Application for Review of UNAT Judgment No. 333

USSR (7-1)

 1. Interpretation of WHO-Egypt Agreement

 1. Interpretation of WHO-Egypt Agreement

United Arab Emirates (1-1)

 1. International Status of South-West Africa 2. Legal Consequences for States of the Continued Presence of South Africa in Namibia

 1. International Status of South-West Africa 2. Certain Expenses of the United Nations 3. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Union of South Africa (3-2)

Oral Statement(s)

 1. Interpretation of Peace Treaties 2. Competence of the GA for the admission of a State to the UN 3. Reservations to the Genocide Convention 4. Certain Expenses of the United Nations

Written Statement(s)

Ukrainian SSR (4-0)

State

(cont.)

712 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Written Statement(s)

  1. Conditions of Admission of a State to Membership in the UN  2. Reparations for Injuries  3. Interpretation of Peace Treaties  4. Competence of the GA for the admission of a State to the UN  5. International Status of South-West Africa  6. Reservations to the Genocide Convention  7. Effect of Compensation Awards made by the UNAT  8. Voting Procedures on Questions Relating to Reports and Petitions concerning the Territory of South-West Africa 10. ILOAT Judgments upon complaints against UNESCO  11. Admissibility of Hearings by the Committee on South-West Africa 12. Constitution of the Maritime Safety Committee 13. Certain Expenses of the United Nations 14. Legal Consequences for States of the Continued Presence of South Africa in Namibia 15. Interpretation of WHO-Egypt Agreement 16. Application for Review of UNAT Judgment No. 273 17. Application for Review of UNAT Judgment No. 333 18. Applicability of the Obligation to Arbitrate under UN HQ Agreement

State

USA (23-9)

(cont.)  1. Interpretation of Peace Treaties 2. Effect of Compensation Awards made by the UNAT 3. Constitution of the Maritime Safety Committee 4. Certain Expenses of the United Nations 5. Legal Consequences for States of the Continued Presence of South Africa in Namibia 6. Interpretation of WHO-Egypt Agreement 7. Applicability of Privileges and Immunities Convention 8. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 9. Legality of the Threat or Use of Nuclear Weapons

Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 713

Yugoslavia (3-1)

 1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Oral Statement(s)

  1. Conditions of Admission of a State to Membership  1. Conditions of Admission of a State to Membership in the UN in the UN  2. Effect of Compensation Awards made by the UNAT*  3. Legal Consequences for States of the Continued Presence of South Africa in Namibia

  1. Competence of the GA for the admission of a State to the UN

Venezuela (1-0)

Vietnam (0-1)

  1. Certain Expenses of the United Nations

19. Applicability of Privileges and Immunities Convention 20. Legality of the Use by a State of Nuclear Weapons in Armed Conflict 21. Legality of the Threat or Use of Nuclear Weapons 22. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights 23. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Written Statement(s)

Upper Volta (1-0)

State

(cont.)

714 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 1. Reservations to the Genocide Convention 2. Effect of Compensation Awards made by the UNAT

 1. ILOAT Judgments upon complaints against UNESCO

 1. Reservations to the Genocide Convention 2. Application to Review UNAT Judgment No. 158 3. Application for Review of UNAT Judgment No. 273 4. Application for Review of UNAT Judgment No. 333 5. Applicability of Privileges and Immunities Convention 6. Competence of the General Assembly for the Admission of a State to the United Nations 7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

UNESCO (1-0)

United Nations (7-11)

1. Reservations to the Genocide Convention

Written Statement(s)

ILO (2-0)

Organisation of African Unity (0-1)

Organisation of American States (1-0)

International Organizations

  1. Conditions of Admission of a State to Membership in the UN  2. Reparations for Injuries  3. Interpretation of Peace Treaties  4. Competence of the GA for the admission of a State to the UN  5. International Status of South-West Africa  6. Reservations to the Genocide Convention  7. Effect of Compensation Awards made by the UNAT  8. Legal Consequences for States of the Continued Presence of South Africa in Namibia  9. Applicability of the Obligation to Arbitrate under UN HQ Agreement 10. Applicability of Privileges and Immunities Convention

1. Legal Consequences for States of the Continued Presence of South Africa in Namibia

Oral Statement(s)

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 715

1. Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

League of Arab States (1-1)

Organization of Islamic Conference (1-1)

Written Statement(s)

International Fund for Agricultural Development (1-0)

World Health Organisation (0-1)

International Organizations

(cont.)

  1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

  1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

  1. Legality of the Use by a State of Nuclear Weapons in Armed Conflict

11. Difference Relating to Immunity from Legal Process of Special Rapporteur of the Commission on Human Rights

Oral Statement(s)

716 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Dissenting Opinion

Joint Dissenting Opinion

 * Only those Judges and Judges ad-hoc who have issued written declaration/opinions are covered.

1. Interpretation of the 1. Free Zones of Greco-Bulgarian Upper Savoy Agreement of and District of 9 December 1927 Gex (second 2. Free Zones of Upper phase) Savoy and the District of Gex 3. Interpretation of the Statute of the Memel Territory (merits) 4. Oscar Chinn Case 5. Losinger & Co. Case

Joint Opinion

Rafael Altamira 1. Status of 1. S.S. Lotus NA (Spain) Eastern Carelia 2. Readaptation of 2. Mavrommatis the Mavrommatis Jerusalem Jerusalem Concessions Concessions 3. Factory at 3. Diversion of Chorzow (Claim Water from the for Indemnities Meuse and Merits) 4. Customs Regime between Germany and Austria 5. Railway Traffic between Lithuania and Poland

NA

Individual (Separate) Opinion 1. Interpretation of 1. Customs the Greco-Bulgarian Regime Agreement of between 9 December 1927 Germany and Austria

NA

Declaration NA

Mineitciro Adatci (Japan)

Judge

Permanent Court of International Justice

Declarations/ Opinions of Judges

7. Borchgrave Case 8. Railway Line PanevezysSaldutiskis

Declaration

Individual (Separate) Opinion

Dionisio Anzilotti 1. Certain German 1. S.S. Wimbledon (Italy) Interests in Polish Upper 2. Interpretation of Silesia (jurisdiction) Judgments Nos. 2. Railway Traffic between 7&8 (Factory at Lithuania and Poland Chorzow) 3. Polish Agrarian Reform 3. City of Danzig and German Minority and ILO 4. Customs Regime between Germany and Austria 5. Certain Danzig Legislative Decrees 6. Pajzs, Csaky, Esterhazy Case (merits) 7. Diversion of Water from the Meuse

Judge

Table (cont.)

NA

Joint Opinion

1. Interpretation of the Statute of the Memel Territory (merits) 2. Interpretation of the 1919 Convention Concerning Employment of Women During Night 3. Legal Status of Eastern Greenland 4. Polish Agrarian Reform and German Minority 5. Lighthouse case between France and Greece 6. Oscar Chinn Case 7. Electricity Company of Sofia and Bulgaria (preliminary objections)

Dissenting Opinion

NA

Joint Dissenting Opinion

718 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

NA

Cheng Tien-Hsi (China)

Eugene Emmanuel Dreyfus (France)

Ludwik Ehrlich (Poland) 1. Factory at Chorzow (Jurisdiction) 2. Factory at Chorzow (Claim for Indemnities and Merits)

Free Zones of Upper Savoy and the District of Gex

1. Phosphates in Morocco

1. Readaptation of the Mavrommatis Jerusalem Concessions

NA

Megalos Calloyanni (Greece)

Individual (Separate) Opinion

1. Status of Eastern Carelia 1. Payment of 2. Factory at Chorzow Various Serbian (Claim for Indemnities Loans Issued in and Merits) France 2. Payment in Gold of Brazilian Loans Contracted in France

Declaration

Antonio Sanchez de Bustamante (Cuba)

Judge

Table (cont.)

NA

NA

NA

NA

NA

Joint Opinion

Joint Dissenting Opinion

NA

Free Zones of Upper Savoy and the District of Gex

NA

NA

NA

1. Free Zones of Upper Savoy and District of Gex (second phase)

NA

NA

1. Mavrommatis Palestine NA Concessions 2. International Commission of the River Oder 3. Interpretation of the Statute of the Memel Territory (merits)

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 719

1. Lighthouse case between 1. Diversion of France and Greece Water from the Meuse 2. Lighthouses in Crete and Samos 3. Phosphates in Morocco 4. Railway Line PanevezysSaldutiskis

1. Certain German 1. S.S. Lotus Interests in Polish Upper 2. Factory at Silesia (judgment) Chorzow (Claim 2. Acquisition of Polish for Indemnities Nationality and Merits)

Jonkheer van Eysinga (Netherlands)

Robert Finlay (UK)

Individual (Separate) Opinion

1. Electricity Company Railway Line of Sofia and Bulgaria Panevezys(preliminary objections) Saldutiskis

Declaration

Rafael Waldemar Erich (Finland)

Judge

Table (cont.)

NA

NA

NA

Joint Opinion NA

Joint Dissenting Opinion

Mavrommatis Palestine Concessions

NA

1. Interpretation of NA the Greco-Bulgarian Agreement of 9 December 1927 2. Interpretation of the Statute of the Memel Territory (merits) 3. Polish Agrarian Reform and German Minority 4. Oscar Chinn Case 5. Losinger & Co. Case 6. Electricity Company of Sofia and Bulgaria (preliminary objections) 7. Societe Commerciale de Belgique

NA

Dissenting Opinion

720 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Hermann-Otavsky NA (Czechoslovakia)

NA

Ake HammarskjØld (Sweden) NA

Pajzs, Csaky, Esterhazy Case (merits)

NA

Customs Regime between Germany and Austria

José Gustavo Guerrero (El Salvador)

Individual (Separate) Opinion

1. Customs Regime NA between Germany and Austria 2. Access to, or Anchorage in the Port of Danzig of Polish War Wessels 3. Interpretation of the 1919 Convention Concerning Employment of Women During Night

Declaration

Henri Auguste Fromageot (France)

Judge

Table (cont.)

NA

NA

NA

NA

Joint Opinion

Joint Dissenting Opinion

Appeal from a Judgment of the HungaroCzechoslovakian Mixed Arbitral Tribunal

NA

NA

NA

Treatment of Polish NA Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory

Treatment of Polish NA Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 721

Minority Schools in Albania 1. Diversion of Water from the Meuse 2. Lighthouses in Crete and Samos

Cecil Hurst (UK)

1. Pajzs, Csaky, Esterhazy Case (merits) 2. Lighthouses in Crete and Samos 3. Railway Line PanevezysSaldutiskis

Diversion of Water from the Meuse

Manley Ottmer Hudson (USA)

1. S.S. Wimbledon 2. Rights of Minorities in Upper Silesia 3. City of Danzig and ILO

Individual (Separate) Opinion

International Commission of the River Oder

Declaration

Max Huber (Switzerland)

Judge

Table (cont.)

NA

NA

NA

Joint Opinion

1. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory 2. Free Zones of Upper Savoy and the District of Gex 3. Oscar Chinn case

1. Electricity Company of Sofia and Bulgaria (preliminary objections) 2. Societe Commerciale de Belgique

NA

Dissenting Opinion

1. Free Zones of Upper Savoy and District of Gex (second phase) 2. Customs Regime between Germany and Austria

NA

NA

Joint Dissenting Opinion

722 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

European Commission of S.S. Lotus the Danube between Galatz and Braila

NA

1. Competence of the ILO (Agriculture Workers) 2. Customs Regime between Germany and Austria 3. Minority Schools in Albania

John Basset Moore (USA)

Harukazu Nagaoka (Japan)

Demetre Negulesco (Romania)

1. European Commission of the Danube between Galatz and Braila 2. Rights of Minorities in Upper Silesia 3. Free Zones of Upper Savoy and the District of Gex

1. Certain Danzig Legislative Decrees 2. Pajzs, Csaky, Esterhazy Case

S.S. Lotus

NA

Bernard Loder (Netherlands)

Individual (Separate) Opinion

Free Zones of Upper Savoy NA and District of Gex (second phase)

Declaration

Frank B. Kellogg (USA)

Judge

Table (cont.)

NA

NA

NA

NA

Dissenting Opinion

Free Zones of Upper Savoy and the District of Gex

NA

Mavrommatis Palestine Concessions

City of NA Danzig and ILO

NA

Joint Opinion

Free Zones of Upper Savoy and District of Gex (second phase)

NA

NA

NA

Customs Regime between Germany and Austria

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 723

NA

Yorozu Oda (Japan) NA

1. Status of Eastern Carelia 1. S.S. Lotus 2. European Commission 2. Readaptation of of the Danube between the Mavrommatis Galatz and Braila Jerusalem Concessions 3. Rights of Minorities in Upper Silesia 4. Factory at Chorzow (Claim for Indemnities and Merits) 5. Free Zones of Upper Savoy and the District of Gex

Didrik Nyholm (Denmark)

Payment of Various Serbian Loans Issued in France

Individual (Separate) Opinion

NA

Declaration

Mileta Novacovitch (Yugoslavia)

Judge

Table (cont.)

NA

NA

NA

Joint Opinion

Mavrommatis Palestine Concessions

NA

NA

Dissenting Opinion

NA

1. Free Zones of Upper Savoy and District of Gex (second phase)

NA

Joint Dissenting Opinion

724 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Factory at Chorzow (Claim for Indemnities and Merits)

Mykolas Römer’is 1. Interpretation of the NA (Lithuania) Statute of the Memel Territory (jurisdiction) 2. Interpretation of the Statute of the Memel Territory (merits) 3. Railway Line PanevezysSaldutiskis

NA

Ernst Rabel (Germany)

Individual (Separate) Opinion NA

Declaration

Theohar Papazoff NA (Bulgaria)

Judge

Table (cont.)

NA

NA

NA

Joint Opinion

NA

NA

1. Interpretation of the Greco-Bulgarian Agreement of 9 December 1927 2. Electricity Company of Sofia and Bulgaria (preliminary objections)

Dissenting Opinion

NA

NA

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 725

1. Interpretation of the 1919 1. S.S. Wimbledon Convention Concerning 2. Rights of Employment of Women Minorities in During Night Upper Silesia 2. Legal Status of Eastern Greenland

Walther Schücking (Germany)

1. Certain German Interests in Polish Upper Silesia (jurisdiction) 2. Certain German Interests in Polish Upper Silesia (judgment) 3. Certain Danzig Legislative Decrees 4. Railway Line PanevezysSaldutiskis

Individual (Separate) Opinion

1. Certain German Interests in Polish Upper Silesia 2. Customs Regime between Germany and Austria 3. Interpretation of the Statute of the Memel Territory 4. Interpretation of the 1919 Convention Concerning Employment of Women During Night 5. Minority Schools in Albania

Declaration

Michal Rostworowski (Poland)

Judge

Table (cont.)

NA

NA

Joint Opinion

Joint Dissenting Opinion

1. Interpretation of Customs Regime the Greco-Bulgarian between Germany Agreement of 9 December and Austria 1927 2. Interpretation of the Statute of the Memel Territory (merits) 3. Polish Agrarian Reform and German Minority 4. Oscar Chinn Case

1. International Commission NA of the River Oder 2. Access to German Minorities Schools in Upper Silesia 3. Access to, or Anchorage in the Port of Danzig of Polish War Wessels 4. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory 5. Interpretation of the Greco-Bulgarian Agreement of 9 December 1927

Dissenting Opinion

726 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

1. Customs Regime between Germany and Austria 2. Interpretation of the Statute of the Memel Territory (merits)

Fransico Urrutia (Colombia) NA

NA

NA

NA

Moricz de Tomcsanyi (Hungary)

Pajzs, Csaky, Esterhazy Case

1. Readaptation of the 1. Payment of NA Mavrommatis Jerusalem Various Serbian Concessions Loans Issued in 2. Free Zones of Upper France Savoy and the District of 2. Payment in Gold Gex of Brazilian Loans Contracted in France

Epitacio da Silva Pessôa (Brazil)

Joint Opinion

Lighthouses in Crete NA and Samos

Individual (Separate) Opinion

NA

Declaration

Stylianos Prodromou Seferiades (Greece)

Judge

Table (cont.)

NA

Joint Dissenting Opinion

1. Access to, or Anchorage in the Port of Danzig of Polish War Wessels 2. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory

NA

NA

NA

1. Mavrommatis Palestine NA Concessions 2. International Commission of the River Oder

Lighthouse case between France and Greece

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 727

NA

Wang Chu’ing Hui Legal Status of Eastern (China) Greenland

Charles Ander Weiss (France)

NA

NA

Michaelo Yovanovitch (Serb-CroatSlovenia)

1. Competence of the ILO S.S. Lotus (Agriculture Workers) 2. Status of Eastern Carelia

NA

NA

Paul Benjamin Vogt (Norway)

Individual (Separate) Opinion

1. Diversion of Water from Railway Line the Meuse Panevezys2. Electricity Company Saldutiskis of Sofia and Bulgaria (preliminary objections)

Declaration

Charles de Visscher (Belgium)

Judge

Table (cont.)

NA

NA

NA

NA

NA

Joint Opinion

NA

NA

Free Zones of Upper Savoy and the District of Gex

Legal Status of Eastern Greenland

NA

3. Electricity Company of Sofia and Bulgaria (preliminary objections)

Dissenting Opinion

NA

NA

Free Zones of Upper Savoy and District of Gex (second phase)

NA

NA

Joint Dissenting Opinion

728 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Joint Declaration

1. Request for the NA Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United States of America).M

Declaration

Joint Opinion

Dissenting Opinion

1. Territorial 1. Application of 1. Territorial and Maritime The Convention and Maritime Dispute on The Dispute (Nicaragua v. Prevention and (Nicaragua v. Colombia).PO Punishment Colombia).Intv 2. Pulp Mills of The Crime on the River of Genocide Uruguay (Croatia Croatia (Argentina v. v. Serbia. Uruguay).PO Serbia).PO

Individual (Separate) Opinion

1. Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore)

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

 * Only those Judges and Judges ad-hoc who have issued written declaration/opinions are covered here.

M = Merits; PO = Preliminary Objections; IMP = Interim Measures of Protection; AO = Advisory Opinion; Intv = Internvention

Rony Abraham (France) 2005–continues

Judge

Table (cont.)

International Court of Justice 729

Declaration

Prince Bola NA Adesumbo Ajibola (Nigeria) 1991–1994

Judge

Table (cont.)

NA

Joint Declaration

Joint Opinion

1. Maritime NA Delimitation in the Area between Greenland and Jan Mayen 2. Territorial Dispute (Libya/Chad) 3. Application of the Genocide Convention.Additional IMP 4. Land and Maritime Boundary between Cameroon and Nigeria.IMP

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Lockerbie 1. Land and (Libya v. Maritime UK). IMP Boundary 2. Lockerbie between (Libya v. Cameroon USA). IMP and Nigeria 3. Land and (Cameroon v. Maritime Nigeria).M Boundary between Cameroon and Nigeria.PO 4. Interpretation of Judgment of 11 June 1998 in Boundary Dispute between Cameroon and Nigeria

Dissenting Opinion

730 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Awn Shawkat Al-Khasawneh (Jordan) 2000–continues

Judge

Table (cont.)

NA

Declaration

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

1. Legality of 1. Application 1. Land and 1. Aerial Incident Use of Force of The Maritime of 10 August (Serbia v. Convention Boundary 1999 (Pakistan Canada).PO on The between v. India) 2. Legality of the Prevention Cameroon and 2. Territorial Use of Force and Nigeria and Maritime (Serbia Punishment (Cameroon v. Dispute United v. of The Crime Nigeria).M (Nicaragua v. Kingdom).PO of Genocide Colombia).PO 3. Legality of the (Croatia 3. Arrest Warrant Use of Force Croatia v. of 11 April (Serbia v. Serbia. 2000 (Congo v. Germany).PO Serbia).PO Belgium) 4. Legality of the 2. Maritime 4. Territorial Use of Force Delimitation and Maritime (Serbia v. and Territorial Dispute Italy).PO Questions (Nicaragua v. 5. Legality of the between Qatar Colombia).Intv Use of Force and Bahrain 5. Oil Platforms (Serbia v. (Qatar v. (Iran v. USA).M Portugal).PO Bahrain).M 6. Application of

Joint Declaration

1. Pulp Mills on the River Uruguay (Argentina v. Uruguay).M 2. Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation).PO 3. Questions relating to the Obligation to Prosecute or Extradite

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 731

Judge

Table (cont.)

Declaration

Individual (Separate) Opinion

6. Legality of the 3. Legal Use of Force Consequences (Serbia v. of the France).PO Construction 7. Legality of the of a Wall in Use of Force the Occupied (Serbia v. Palestinian Nether­Territory.AO lands).PO 4. Armed 8. Case Activities on Concerning the Territory Ahmadou of the Sadio Diallo Congo (New (Republic Application: of Guinea v. 2002) Democratic (Democratic Republic of the Republic of Congo).M the Congo v. Rwanda). Jurisdiction

Joint Declaration

Joint Opinion

Joint Dissenting Opinion



the Genocide (Belgium v. Convention Senegal).PO (Bosnia and 4. Case Herzegovina Concerning v. Serbia and Ahmadou Sadio Montenegro).M Diallo (Republic of Guinea v. Democratic Republic of the Congo).M

Dissenting Opinion

732 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

2. Temple of Preah Vihear.PO

Declaration

Roberto Ago (Italy) 3. Territorial 1979–1995 Dispute (Libya/Chad)

Ricardo Joaquin Alfaro (Panama) 1959–1964

Judge

Table (cont.)

NA

NA

Joint Declaration

Joint Opinion

1. Continental 1. Military and Shelf (Tunisia/ Paramilitary Libya). Judgment Activities in 2. Military and and against Paramilitary Nicarauga.Intv Activities in and against Nicarauga.PO 3. Military and Paramilitary Activities in and against Nicarauga.M 4. Application for Review of UNAT Judgment No. 333.AO 5. Interpretation of WHO-Egypt Agreement.AO

1. Temple of NA Preah Vihear.M

Individual (Separate) Opinion

1. Continental Shelf (Libya/ Malta).Intv 2. Certain Phosphate Lands in Nauru.PO

NA

Dissenting Opinion

NA

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 733

1. Maritime Delimitation in the Area between Greenland and Jan Mayen

1. Ambatielos.PO 2. Minquiers and Ecrehos.J

Alejandro Alvarez (Chile) 1946–1955

Declaration

Andrés AguilarMawdsley (Venezuela) 1991–1995

Judge

Table (cont.)

NA

1. Lockerbie (Libya v. UK).IMP 2. Lockerbie (Libya v. USA).IMP

Joint Declaration

NA

Joint Opinion

1. Corfu 1. Corfu Channel.M Channel.PO 2. Fisheries (UK v. Norway) 3. Anglo-Iran Oil Company.PO 5. Admission of a State to the UN Membership.AO 6. Reparations for Injuries.AO

NA

Individual (Separate) Opinion 1. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal).J

Joint Dissenting Opinion

1. Asylum NA (Colombia/ Peru).J 2. UN General Assembly Competence for the admission of a State to the UN.AO 3. International Status of SouthWest Africa.AO

NA

Dissenting Opinion

734 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Fouad Ammoun (Lebanon) 1965–1976

Judge

Table (cont.)

NA

Declaration

Individual (Separate) Opinion

Joint Opinion

1. Fisheries 1. Barcelona NA Jurisdiction Traction (new (UK v. application).M Iceland).IMP 2. North Sea 2. Fisheries Continental Jurisdiction Shelf (FR (FR Germany Germany/ v. Iceland).IMP Denmark; FR Germany/NL) 3. Legal Consequences for States for Continued 4. Presence of South Africa in Namibia.AO 4. Western Sahara.AO

Joint Declaration

1. Application for Review of UNAT Judgment No. 158.AO

4. Reservations to the Genocide Convention.AO 5. Effect of UNAT Awards of Compensation.AO

Dissenting Opinion

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 735

NA

José Philadelpho de NA Barros e Azevedo (Brazil) 1946–1951

Joint Declaration

NA

Declaration

NA

Enrique C Armand-Ugon (Uruguay) 1952–1961

Judge

Table (cont.) Joint Opinion

1. Admission of NA a State to the UN Membership.AO 2. Reparations for Injuries.AO 3. Interpretation of Peace Treaties (Questions 1&2).AO

1. Aerial Incident NA of 7 July 1955 (Israel v. Bulgaria).PO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Corfu NA Channel.M 1. Asylum (Colombia/ Peru). J 2. Interpretation of Peace Treaties (Questions 3&4).AO 3. UN General Assembly Competence for the admission of a State to the UN.AO

1. Right of Passage 1. Admissibility over Indian of Hearings on Territory.M Committee on 2. Interhandel. J South-West 3. Certain Frontier Africa.AO Land 4. Barcelona Traction (new application).PO

Dissenting Opinion

736 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

1. Right of Passage over Indian Territory.M 2. International Status of South-West Africa.AO

1. Corfu Channel.M 2. Right of Passage over

Jules Basdevant (France) 1946–1964

Declaration

Abdel Hamid Badawi (Egypt) 1946–1965

Judge

Table (cont.)

NA

NA

Joint Declaration

Joint Opinion

1. Minquiers and 1. Corfu Ecrehos. J Channel.PO 2. Voting Procedures

1. Certain 1. Corfu Norwegian Channel.PO Loans. J 2. Guardianship of Infant. J 3. Aerial Incident of 7 July 1955 (Israel v. Bulgaria).PO

Individual (Separate) Opinion

1. Ambatielos.PO 2. Certain Norwegian Loans. J

1. Corfu Channel.M 2. Asylum (Colombia/ Peru).J 3. Right of Passage over Indian Territory.PO 4. Northern Cameroons 5. Reparations for Injuries.AO 6. ILOAT Judgments on Complains made against UNESCO.AO

Dissenting Opinion

1. Ambatielos.M 2. Admissibility of Hearings on Committee on

1. Rights of US Nationals in Morocco.J 2. Anglo-Iran Oil Company.IMP 3. Right of Passage over Indian Territory.M 4. Admissibility of Hearings on Committee on South-West Africa.AO

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 737

NA

Indian Territory.M 3. Interhandel. J

Declaration

Mohammed 1. Legality of the Bedjaoui (Algeria) Use or Threat 1982–2001 of Nuclear Weapons.AO

Richard Baxter (USA) 1979–1980

Judge

Table (cont.)

1. Lockerbie (Libya v. UK).PO 2. Lockerbie (Libya v. UK).PO 3. Lockerbie (Libya v. USA).PO

NA

Joint Declaration

1. Military and Paramilitary Activities in and against Nicarauga.Intv 2. GabcikovoNagymaros Project

NA

on Questions Relating to the Reports and Petitions Concerning the Territory of South-West Africa.AO

Individual (Separate) Opinion

1. Continental Shelf (Libya/ Malta).M

NA

Joint Opinion

Joint Dissenting Opinion

1. Lockerbie (Libya v. UK).IMP 2. Lockerbie (Libya v. USA).IMP 3. Fisheries Jurisdiction (Spain v. Canada)

NA

1. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M

NA

3. South-West South-West Africa.PO Africa.AO 4. Admission of a State to the UN Membership.AO 5. Certain Expenses of the UN.AO

Dissenting Opinion

738 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL).M

Pulp Mills on the River Uruguay (Argentina v. Uruguay).PO

Thomas Buergenthal (USA) 2000–2010

Declaration

César Bengzon (Philippines) 1967–1976

Judge

Table (cont.)

NA

Individual (Separate) Opinion

1. Legality of 1. Oil Platforms Use of Force (Iran v. USA).M (Serbia v. 2. Legal Belgium).PO Consequences 2. Legality of of the Use of Force Construction (Serbia v. of a Wall in Canada).PO the Occupied 3. Legality of Palestinian the Use of Territory.AO Force (Serbia v. United Kingdom).PO 4. Legality of the Use of Force (Serbia v. Germany).PO

1. Nuclear Tests (Australia v. France).J

Joint Declaration

Arrest Warrant of 11 April 2000 (Congo v. Belgium)

Dissenting Opinion NA

Joint Dissenting Opinion

1. Request for the NA Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United states of America).PO 2. LaGrand Case (Germany v. USA).M

1. Fisheries NA Jurisdiction (UK v. Iceland).M 2. Fisheries Jurisdiction (FR Germany v. Iceland).M

Joint Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 739

José Luis Bustamante y Rivero (Peru) 1961–1970

Judge

Table (cont.)

NA

Declaration

NA

5. Legality of the Use of Force (Serbia v. Italy).PO 6. Legality of the Use of Force (Serbia v. Portugal).PO 7. Legality of the Use of Force (Serbia v. France).PO 8. Legality of the Use of Force (Serbia v. Netherlands).PO

Joint Declaration

Joint Opinion

1. South-West NA Africa.PO 2. Barcelona Traction (new application).PO 3. Barcelona Traction (new application).M

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Northern NA Cameroons 2. Certain Expenses of the UN.AO

Dissenting Opinion

740 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Declaration

Antônio Augusto NA Cançado Trindade (Brazil) 2009–continues

Judge

Table (cont.)

4. North Sea Continental Shelf (FR 5. Germany/ Denmark; FR Germany/NL)

Individual (Separate) Opinion

1. Territorial 1. Pulp Mills and Maritime on the River Dispute Uruguay (Nicaragua v. (Argentina v. Colombia).Intv Uruguay).M 2. Case 2. Case Concerning Concerning Ahmadou Ahmadou Sadio Diallo Sadio Diallo (Republic (Republic of Guinea v. of Guinea v. Democratic Democratic Republic of the Republic of Congo).M the Congo).M

Joint Declaration

NA

Joint Opinion

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).PO

Dissenting Opinion

Territorial and Maritime Dispute (Nicaragua v. Colombia).Intv

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 741

NA

Federico de Castro NA (Spain) 1970–1979

Joint Declaration

NA

Declaration

NA

Levi Fernandes Carneiro (Brazil) 1951–1955

Judge

Table (cont.) Joint Opinion

1. Appeal NA Relating to the Jurisdiction of the ICAO Council 2. Fisheries Jurisdiction (UK v. Iceland).M 3. Fisheries Jurisdiction (FR Germany v. Iceland).M 4. Aegean Sea Continental Shelf. J

1. Ambatielos.PO NA 2. Anglo-Iran Oil Company.PO 3. Minquiers and Ecrehos. J

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Nuclear Tests NA (Australia v. France). J 2. Nuclear Tests (New Zealand v. France). J 3. Aegean Sea Continental Shelf. J 4. Application for Review of UNAT Judgment No. 158.AO

1. Monetary Rights of US Gold.PO Nationals in 2. Effect of UNAT Morocco. J Awards of Compensation.AO

Dissenting Opinion

742 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

Charles De NA Visscher (Belgium) 1946–1952

Joint Declaration

NA

Declaration

NA

Roberto Córdova (Mexico) 1955–1964

Judge

Table (cont.)

NA

Interhandel. J

5. Legal Consequences for States for Continued Presence of South Africa in Namibia.AO 6. Western Sahara.AO

Individual (Separate) Opinion

1. Corfu Channel.PO

NA

Joint Opinion

Joint Dissenting Opinion

International Status of SouthWest Africa.AO

NA

1. Guardianship of NA Infant.J 2. ILOAT Judgments on Complains made against UNESCO.AO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 743

Declaration

Hardy Cross Dillard 1. Fisheries (USA) Jurisdiction 1970–1979 (FR Germany v. Iceland).M

Judge

Table (cont.) Individual (Separate) Opinion

Joint Opinion

1. Nuclear Tests 1. Legal NA (Australia v. Consequences France). J for States for 2. Nuclear Tests Continued (Australia v. Presence of France).Intv South Africa in 3. Nuclear Tests Namibia.AO (New Zealand 2. Application v. France).Intv for Review of UNAT Judgment No. 158.AO 3. Western Sahara.AO 4. Appeal Relating to ICAO Council 5. Fisheries Jurisdiction (UK v. Iceland).M

Joint Declaration

NA

Dissenting Opinion 1. Nuclear Tests (Australia v. France). J 2. Nuclear Tests (New Zealand v. France). J

Joint Dissenting Opinion

744 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Declaration

Nabil Elaraby (Egypt) 2001–2006

NA

Joint Declaration

Armed 1. Legality of Activities on Use of Force the Territory of (Serbia v. the Congo (New Belgium).PO Application: 2002) 2. Legality of (Democratic Use of Force Republic of (Serbia v. the Congo Canada).PO v. Rwanda). 3. Legality of Jurisdiction the Use of Force (Serbia v. United Kingdom).PO

Joan E. Donoghue NA (USA) 2010–continues

Judge

Table (cont.)

1. Legality of Use of Force (Serbia v. Belgium).PO 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.AO

NA

Individual (Separate) Opinion 1. Territorial and Maritime Dispute (Nicaragua v. Colombia).Intv

Dissenting Opinion

Armed Activities Oil Platforms on the Territory (Iran v. USA).M of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda). Jurisdiction

NA

Joint Opinion

Certain Property (Liechtenstein v. Germany)

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 745

Taslim Olawale Elias (Nigeria) 1976–1981

Judge

Table (cont.)

Applicability of the Obligation under UN HQ Agreement.AO

Declaration

NA

4. Legality of the Use of Force (Serbia v. Germany).PO 5. Legality of the Use of Force (Serbia v. Italy).PO 6. Legality of the Use of Force (Serbia v. Portugal).PO 7. Legality of the Use of Force (Serbia v. France).PO 8. Legality of the Use of Force (Serbia v. Netherlands).PO

Joint Declaration

1. Aegean Sea Continental Shelf.IMP

Individual (Separate) Opinion

NA

Joint Opinion

Joint Dissenting Opinion

Land, Island and NA Maritime Frontier Dispute

Dissenting Opinion

746 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

Continental Shelf (Libya/Malta).M

Abdallah Fikri El-Khani (Syria) 1981–1985

Declaration

Abdullah El-Erian (Egypt) 1979–1981

Judge

Table (cont.)

NA

NA

Joint Declaration

NA

Interpretation of Agreement between WHO and Egypt.AO

2. Military and Paramilitary Activities in and against Nicaragua.M 3. Application for Review of UNAT Judgment No. 333.AO

Individual (Separate) Opinion

NA

NA

Joint Opinion

NA

Joint Dissenting Opinion

1. Delimitation NA of Maritime Boundary in the Gulf of Maine Area. Chamber Constitution 2. Application for Review of UNAT Judgment No. 273

NA

(El Salvador/ Honduras).Intv

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 747

Maritime Delimitation in the Area between Greenland and Jan Mayen

Declaration

Luigi Ferrari Bravo 1. Legality of the (Italy) Use by a State 1995–1997 of Nuclear Weapons in Armed Conflict.AO 2. Legality of the Use or Threat of Nuclear Weapons.AO

Jens Evensen (Norway) 1985–1994

Judge

Table (cont.)

NA

1. Lockerbie (Libya v. UK).IMP 2. Lockerbie (Libya v. USA).IMP

Joint Declaration

Joint Opinion

NA

NA

1. Arbitral Award NA of 31 July 1989 (Guinea Bissau v. Senegal).IMP 2. Applicability of Article VI, Section 22 of the Privileges & Immunities Convention.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

NA

NA

1. Continental NA Shelf (Tunisia/ Libya). Judgment 2. Application for Review of UNAT Judgment No. 333.AO

Dissenting Opinion

748 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

Certain Property (Liechtenstein v. Germany)

Carl-August Fleischhauer (Germany) 1994–2003

Declaration

Sir Gerald Gray Fitzmaurice (UK) 1960–1973

Judge

Table (cont.)

1. Lockerbie (Libya v. UK).PO 2. Lockerbie (Libya v. USA).PO

Temple of Preah Vihear.PO

Joint Declaration

Joint Opinion

Legality of the Use or Threat of Nuclear Weapons.AO

NA

1. Temple of NA Preah Vihear.M 2. Northern Cameroons 3. Barcelona Traction (new application).M 4. Fisheries Jurisdiction (UK v. Iceland). Jurisdiction 5. Fisheries Jurisdiction (FR Germany v. Iceland). Jurisdiction 6. Certain Expenses of the UN.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Gabcikovo -Nagymaros Project. J 2. Kasikili/Sedudu Island

Legal South-West Consequences Africa.PO for States for Continued Presence of South Africa in Namibia.AO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 749

Application for Review of UNAT Judgment No. 158.AO

NA

1. Nuclear Tests (Australia v. France).Intv 2. Nuclear Tests (New Zealand v. France).Intv

Christopher Greenwood (UK) 2009–continues

André Gros (France) 1964–1984

Declaration

Issac Forster (Senegal) 1964–1982

Judge

Table (cont.) Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

NA

Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).M 1. Barcelona NA Traction (new application).M 2. Nuclear Tests (Australia v. France). J

Pulp Mills on the NA River Uruguay (Argentina v. Uruguay).M

NA

1. Fisheries NA Jurisdiction (UK v. Iceland) Continuation of IMP 2. Fisheries Jurisdiction (UK v. Iceland).M

NA

1. Fisheries 1. Nuclear Tests 1. Fisheries 1. Nuclear Tests NA Jurisdiction (Australia v. Jurisdiction (Australia v. (UK v. France). J (UK v. France).IMP Iceland).IMP 2. Nuclear Tests Iceland).M 2. Nuclear Tests 2. Fisheries (New Zealand 2. Fisheries (New Zealand v. Jurisdiction v. France). J Jurisdiction France).IMP (FR Germany 3. Western (FR Germany v. v. Iceland).IMP Sahara.AO Iceland).M

Joint Declaration

750 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

3. Western Sahara.AO

Declaration

Joint Declaration

3. Nuclear Tests (New Zealand v. France). J 4. Aegean Sea Continental Shelf. J 5. Interpretation of Agreement between WHO and Egypt.AO

Individual (Separate) Opinion

Joint Opinion

3. Fisheries Jurisdiction (FR Germany v. Iceland). Continuation of IMP 4. Fisheries Jurisdiction (FR Germany v. Iceland).M 5. Nuclear Tests (New Zealand v. France).IMP 6. Continental Shelf (Tunisia/ Libya). Judgment 7. Delimitation of Maritime Boundary in the Gulf of Maine Area. Judgment

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 751

José Gustavo Guerrero (El Salvador) 1946–1958

Judge

Table (cont.)

International Status of SouthWest Africa.AO

Declaration

NA

Joint Declaration

NA

Individual (Separate) Opinion

NA

Joint Opinion

Joint Dissenting Opinion

1. Certain NA Norwegian Loans. J 2. Reservations to the Genocide Convention

8. Legal Consequences for States for Continued Presence of South Africa in Namibia.AO 9. Application for Review of UNAT Judgment No. 158.AO 10. Nuclear Tests (Australia v. France).IMP

Dissenting Opinion

752 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Gilbert Guillaume (France) 1987–2005

Judge

Table (cont.)

1. Disputes Regarding Navigational and Related Rights (Costa Rica v. Nicaragua).M 2. Case concerning certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M 3. LaGrand Case (Germany v. USA).M

Declaration

Individual (Separate) Opinion

Joint Opinion

1. Lockerbie 1. Legality of the NA (Libya v. Use or Threat UK). IMP of Nuclear 2. Lockerbie Weapons.AO (Libya v. 2. Arrest Warrant UK).PO of 11 April 3. Lockerbie 2000 (Congo v. (Libya v. USA). Belgium) IMP 5. Lockerbie (Libya v. USA).PO 6. Legality of Use of Force (Serbia v. Belgium).PO 7. Legality of Use of Force (Serbia v. Canada).PO 8. Legality of the Use of Force (Serbia v. United Kingdom).PO

Joint Declaration

NA

Dissenting Opinion NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 753

Green H. Hackworth (USA) 1946–1961

Judge

Table (cont.)

1. Fisheries (UK v. Norway). J

Declaration

NA

9. Legality of the Use of Force (Serbia v. Germany).PO 10. Legality of the Use of Force (Serbia v. Italy).PO 11. Legality of the Use of Force (Serbia v. Portugal).PO 12. Legality of the Use of Force (Serbia v. France).PO 13. Legality of the Use of Force (Serbia v. Netherlands).PO

Joint Declaration

Joint Opinion

1. Anglo-Iran Oil NA Company.PO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Reparations for 1. Rights of US Injuries.AO Nationals in Morocco.J

Dissenting Opinion

754 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Géza Herczegh (Hungary) 1993–2003

Judge

Table (cont.)

1. Lockerbie (Libya v. UK).PO 2. Lockerbie (Libya v. USA).PO 3. Legality of the Use or Threat of Nuclear Weapons.AO 4. Maritime Delimitation and Territorial Questions between Qatar

Declaration

NA

Joint Declaration

NA

2. Interhandel. J

Individual (Separate) Opinion

NA

Joint Opinion

GabcikovoNagymaros Project.J

2. Effect of UNAT Awards of Compensation.AO 3. ILOAT Judgments on Complains made against UNESCO.AO

Dissenting Opinion

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 755

Dame Rosalyn Higgins (UK) 1995–2009

Judge

Table (cont.)

1. Kasikili/ Sedudu Island 2. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M

and Bahrain (Qatar v. Bahrain).M 5. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria).M

Declaration

1. Legality of Use of Force (Serbia v. Belgium).PO 2. Legality of Use of Force (Serbia v. Canada).PO 3. Legality of the Use of Force (Serbia v. United Kingdom).PO

Joint Declaration

Joint Opinion

1. Oil Plat1. Arrest Warrant forms.PO of 11 April 2. Oil Platforms. 2000 (Congo v. Counter-claims Belgium) 3. Land and 2. Armed Maritime Activities on Boundary the Territory between of the Cameroon and Congo (New Nigeria.PO Application: 4. Legality of 2002) Use of Force (Democratic (Yugoslavia v. Republic of NL).IMP the Congo v. Rwanda). Jurisdiction

Individual (Separate) Opinion

Legality of the Use or Threat of Nuclear Weapons.AO

Dissenting Opinion

NA

Joint Dissenting Opinion

756 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Individual (Separate) Opinion 5. Legality of Use of Force (Yugoslavia v. Portugal).IMP 6. Legality of Use of Force (Yugoslavia v. UK).IMP 7. Legality of Use of Force (Yugoslavia v. Belgium).IMP 8. Legality of Use of Force (Yugoslavia v. Canada).IMP 9. Legality of Use of Force (Yugoslavia v. Spain).IMP 10. Legality of Use of Force (Serbia v. Belgium).PO

Joint Declaration

4. Legality of the Use of Force (Serbia v. Germany).PO 5. Legality of the Use of Force (Serbia v. Italy).PO 6. Legality of the Use of Force (Serbia v. Portugal).PO 7. Legality of the Use of Force (Serbia v. France).PO 8. Legality of the Use of Force (Serbia v. Netherlands).PO

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 757

Judge

Table (cont.)

Declaration

Joint Declaration

11. Legality of Use of Force (Serbia v. Canada).PO 12. Legality of the Use of Force (Serbia v. United Kingdom).PO 13. Legality of the Use of Force (Serbia v. Germany).PO Fisheries (UK v. Norway).J 14. Legality of the Use of Force (Serbia v. Italy).PO 15. Legality of the Use of Force (Serbia v. Portugal).PO

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

758 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Joint Declaration

16. Legality of the Use of Force (Serbia v. France).PO 17. Legality of the Use of Force (Serbia v. Netherlands).PO 18. Oil Platforms (Iran v. USA).M 19. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.AO 20. Legality of Use of Force (Yugoslavia v. Spain).IMP

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 759

Joint Opinion

1. Nuclear Tests NA (Australia v. France).J 2. Nuclear Tests (New Zealand v. France).J

Individual (Separate) Opinion

Louis Ignacio-Pinto 1. Fisheries NA (Benin) Jurisdiction 1970–1979 (UK v. Iceland). Continuation of IMP 2. Fisheries Jurisdiction (UK v. Iceland).M 3. Fisheries Jurisdiction (FR Germany v. Iceland). Continuation of IMP 4. Fisheries Jurisdiction (FR Germany v. Iceland).M 5. Western Sahara.AO

Joint Declaration

NA

Rights of US Nationals in Morocco.J

Declaration

NA

Hsu Mo (China) 1946–1956

Judge

Table (cont.)

1. Nuclear Tests (Australia v. France).IMP 2. Nuclear Tests (New Zealand v. France).IMP

1. Ambatielos.PO 2. Reservations to the Genocide Convention

Dissenting Opinion Admissibility of Hearings on Committee on South-West Africa. AO NA

Joint Dissenting Opinion

760 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

1. Northern Cameroons 2. Barcelona Traction (new application).PO

Philip C. Jessup (USA) 1961–1970

Joint Declaration

NA

Declaration

Sir Robert Yewdall NA Jennings (UK) 1982–1995

Judge

Table (cont.)

1. Military and Paramilitary Activities in and against Nicarauga.IMP 2. Military and Paramilitary Activities in and against Nicarauga.Intv

Joint Opinion

1. South-West NA Africa.PO 2. Barcelona Traction (new application).M

1. Military and Paramilitary Activities in and against Nicarauga.PO

Individual (Separate) Opinion

Joint Dissenting Opinion

South-West Africa.M

NA

1. Continental NA Shelf (Libya/ Malta).Intv 2. Military and Paramilitary Activities in and against Nicarauga.M 3. Certain Phosphate Lands in Nauru.PO 4. Lockerbie (Libya v. UK).PO 5. Application for Review of UNAT Judgment No. 333.AO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 761

Eduardo Jiménez de Aréchaga (Uruguay) 1970–1979

Judge

Table (cont.)

1. Nuclear Tests (Australia v. France).IMP 2. Nuclear Tests (Australia v. France).Intv 3. Nuclear Tests (New Zealand v. France).IMP 4. Nuclear Tests (New Zealand v. France).Intv

Declaration

3. North Sea Continental Shelf (FR 4. Germany/ Denmark; FR Germany/NL)

Individual (Separate) Opinion

Joint Opinion

1. Fisheries 1. Appeal 1. Fisheries NA Jurisdiction Relating to the Jurisdiction (UK v. Iceland). Jurisdiction (UK v. IMP of the ICAO Iceland).M 2. Fisheries Council 2. Fisheries Jurisdiction 2. Aegean Sea Jurisdiction (FR Germany Continental (FR Germany v. v. Iceland).IMP Shelf.IMP Iceland).M 3. Nuclear Tests 3. Continental 3. Continental (Australia v. Shelf (Tunisia/ Shelf (Libya/ France).J Libya).Judgment Malta).M 4. Continental Shelf (Libya/ Malta).Intv 5. Application for Review of UNAT Judgment No. 158.AO

Joint Declaration

Dissenting Opinion

1. Nuclear Tests (Australia v. France).J 2. Nuclear Tests (New Zealand v. France).J

Joint Dissenting Opinion

762 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

1. Nottebohm.PO NA 2. Right of Passage over Indian Territory.M 3. Interhandel.IMP

Helge Klaestad (Norway) 1946–1961

Individual (Separate) Opinion NA

Joint Opinion

1. Voting NA Procedures on Questions Relating to the Reports and Petitions

Case Concerning 1. Pulp Mills Ahmadou Sadio on the River Diallo Uruguay (Republic (Argentina v. of Guinea v. Uruguay).M Democratic 2. Case Republic of the concerning Congo).M certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M

Joint Declaration

1. Territorial and Maritime Dispute (Nicaragua v. Colombia).PO 2. Territorial and Maritime Dispute (Nicaragua v. Colombia).Intv 3. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).M

Declaration

Sir Kenneth Keith (New Zealand) 2006–continues

Judge

Table (cont.)

Request for the Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United states of America).PO

Joint Dissenting Opinion

1. Ambatielos.PO Ambatielos.M 2. Nottebohm. Second phase 3. Right of Passage over Indian Territory.PO

NA

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 763

Feodor Ivanovitch Kojevnikov (USSR) 1953–1961

Judge

Table (cont.)

Joint Declaration

1. Right of NA Passage over Indian Territory.PO 2. Right of Passage over Indian Territory.M 3. Guardianship of Infant.J 4. Interhandel.IMP 5. Interhandel.J

Declaration

NA

Concerning the Territory of South-West Africa.AO 2. ILOAT Judgments on Complains made against UNESCO.AO

Individual (Separate) Opinion

NA

Joint Opinion

NA

4. Interhandel.J 5. Constitution of the Maritime Safety Committee.AO

Dissenting Opinion

NA

Joint Dissenting Opinion

764 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Pieter H. Kooijmans (The Netherlands) 1997–2006

Judge

Table (cont.)

NA

6. Voting Procedures on Questions Relating to the Reports and Petitions Concerning the Territory of South-West Africa.AO 7. ILOAT Judgments on Complains made against UNESCO.AO 8. Admissibility of Hearings on Committee on South-West Africa.AO

Declaration

1. Legality of Use of Force (Serbia v. Belgium).PO

Joint Declaration

1. Lockerbie (Libya v. UK). PO

Individual (Separate) Opinion

1. Arrest Warrant NA of 11 April 2000 (Congo v. Belgium)

Joint Opinion

Dissenting Opinion

Case concerning certain Property (Liechtenstein v. Germany)

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 765

Judge

Table (cont.)

Declaration

2. Legality of Use of Force (Serbia v. Canada).PO 3. Legality of the Use of Force (Serbia v. United Kingdom).PO 4. Legality of the Use of Force (Serbia v. Germany).PO 5. Legality of the Use of Force (Serbia v. Italy).PO 6. Legality of the Use of Force (Serbia v. Portugal).PO 7. Legality of the Use of Force (Serbia v. France).PO

Joint Declaration

Joint Opinion

2. Lockerbie 2. Armed (Libya v. Activities on USA).PO the Territory 3. Land and of the Maritime Congo (New Boundary Application: between 2002) Cameroon and (Democratic Nigeria.PO Republic of 4. Fisheries the Congo Jurisdiction v. Rwanda). (Spain v. Jurisdiction Canada) 5. Kasikili/ Sedudu Island 6. Legality of Use of Force (Yugoslavia v. Belgium).IMP 7. Legality of Use of Force (Yugoslavia v. Canada).IMP

Individual (Separate) Opinion

Dissenting Opinion

Joint Dissenting Opinion

766 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Individual (Separate) Opinion 8. Legality of Use of Force (Yugoslavia v. NL).IMP 9. Legality of Use of Force (Yugoslavia v. Portugal).IMP 10. Legality of Use of Force (Yugoslavia v. Spain).IMP 11. Legality of Use of Force (Yugoslavia v. UK).IMP 12. Legality of Use of Force (Serbia v. Belgium).PO 13. Legality of Use of Force (Serbia v. Canada).PO

Joint Declaration

8. Legality of the Use of Force (Serbia v. Netherlands). PO

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 767

Judge

Table (cont.)

Declaration

Joint Declaration

14. Legality of the Use of Force (Serbia v. United Kingdom).PO 15. Legality of the Use of Force (Serbia v. Germany).PO 16. Legality of the Use of Force (Serbia v. Italy).PO 17. Legality of the Use of Force (Serbia v. Portugal).PO 18. Legality of the Use of Force (Serbia v. France).PO 19. Legality of the Use of Force (Serbia v. Netherlands).PO

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

768 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Joint Declaration

20. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M 21. Oil Platforms (Iran v. USA).M 22. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.AO 23. Legality of Use of Force (Yugoslavia v. Spain).IMP

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 769

1. Northern Cameroons 2. Barcelona Traction (new application).PO

1. Land and Maritime Boundary between Cameroon and Nigeria.IMP 2. Kasikili/ Sedudu Island 3. Vienna Convention on Consular Relations.IMP

Abdul G. Koroma (Sierra Leone) 1994–continues

Declaration

Vladimir M. Koretsky (USSR) 1961–1970

Judge

Table (cont.)

NA

Individual (Separate) Opinion NA

Joint Opinion

1. Lockerbie 1. Application of 1. Certain (Libya v. the Genocide Criminal UK).PO Convention. Proceedings 2. Application Counter-claims in France of The 2. Gabcikovo(Republic of Convention Nagymaros the Congo v. on The Project.J France).PO Prevention and 3. Fisheries Punishment of Jurisdiction The Crime of (Spain v. Genocide Canada)

NA

Joint Declaration

Joint Dissenting Opinion

1. Maritime 1. Application Delimitation of the and Territorial International Questions Convention on between Qatar the Elimination and Bahrain. of all forms Jurisdiction(Part II) of Racial 2. Land and Discrimination Maritime (Georgia Boundary v. Russian between Federation).PO Cameroon and 2. Maritime Nigeria.PO Delimitation

1. South-West NA Africa.M 2. North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL) 3. Certain Expenses of the UN.AO

Dissenting Opinion

770 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

4. Legality of Use of Force (Yugoslavia v. Belgium).IMP 5. Legality of Use of Force (Yugoslavia v. Canada).IMP 6. Legality of Use of Force (Yugoslavia v. France).IMP 7. Legality of Use of Force (Yugoslavia v. Germany).IMP 8. Legality of Use of Force (Yugoslavia v. Italy).IMP 9. Legality of Use of Force (Yugoslavia v. NL).IMP

Declaration

Individual (Separate) Opinion

(Croatia v. 4. Aerial Incident Serbia).PO of 10 August 3. Questions 1999 (Pakistan relating to the v. India) Obligation 5. Arrest Warrant to Prosecute of 11 April or Extradite 2000.IMP (Belgium v. 6. Application Senegal).PO for revision of 4. Application of the judgment the Genocide of 11 July 1996 Convention in the case (Bosnia and concerning Herzegovina application of v. Serbia the convention and Monteon the negro).M prevention and punishment of the crime of genocide (Yugoslavia v. Bosnia and Herzegovina).PO

Joint Declaration

Joint Opinion

Joint Dissenting Opinion

3. Interpretation and Territorial of Judgment Questions of 11 June 1998 between Qatar in Boundary and Bahrain Dispute (Qatar v. between Bahrain).M Cameroon and 3. Application of Nigeria the Genocide 4. Legality of the Convention Use by a State (Bosnia and of Nuclear Herzegovina Weapons in v. Serbia and Armed Conflict. Montenegro).M AO 5. Legality of the Use or Threat of Nuclear Weapons.AO 6. Difference Relating to Immunity from Legal Process of Special Rapporteur of UN Human Rights Commission.AO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 771

Judge

Table (cont.)

10. Legality of Use of Force (Yugoslavia v. Portugal).IMP 11. Legality of Use of Force (Yugoslavia v. Spain).IMP 12. Legality of Use of Force (Yugoslavia v. UK).IMP 13. Legality of Use of Force (Yugoslavia v. USA).IMP 14. Legality of Use of Force (Serbia v. Belgium).PO 15. Armed Activities in Territory of Congo (DR Congo Uganda).IMP

Declaration

Joint Declaration

7. Maritime Delimitation between Nicaragua and Honduras in the Carribean Sea 8. Arrest Warrant of 11 April 2000 (Congo v. Belgium) 9. Case concerning certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M 10. Legal Consequences of the Construction of a Wall in

Individual (Separate) Opinion

Joint Opinion

7. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria).M 8. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda). Jurisdiction

Dissenting Opinion

Joint Dissenting Opinion

772 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

16. Legality of Use of Force (Serbia v. Canada).PO 17. Legality of the Use of Force (Serbia v. United Kingdom).PO 18. Legality of the Use of Force (Serbia v. Germany).PO 19. Legality of the Use of Force (Serbia v. Italy).PO 20. Legality of the Use of Force (Serbia v. Portugal).PO 21. Legality of the Use of Force (Serbia v. France).PO

Declaration

Joint Declaration

the Occupied Palestinian Territory.AO 11. LaGrand Case (Germany v. USA).M

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 773

Judge

Table (cont.)

22. Legality of the Use of Force (Serbia v. Netherlands). PO 23. Request for the Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United States of America).M 24. Pulp Mills on the River Uruguay (Argentina v. Uruguay).PO

Declaration

Joint Declaration

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

774 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Sergei Borisovitch Krylov (USSR) 1946–1952

Judge

Table (cont.)

1. Interpretation of Peace Treaties (Questions 3&4).AO

25. Oil Platforms (Iran v. USA).M 26. Legality of use of Force (Yugoslavia v. U.S.A.).IMP 27. Legality of Use of Force (Yugoslavia v. Spain).IMP

Declaration

NA

Joint Declaration

2. Fisheries (UK v. Norway).J

Individual (Separate) Opinion

Dissenting Opinion

Joint Dissenting Opinion

1. Corfu Channel. 1. Corfu NA PO Channel.M 2. Corfu Channel.C 3. Admission of a State to the UN Membership.AO 4. Reparations for Injuries.AO 5. Interpretation of Peace Treaties (Questions 1&2).AO 6. International Status of SouthWest Africa.AO

Joint Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 775

Manfred Lachs (Poland) 1967–1993

Judge

Table (cont.)

Joint Declaration

1. Barcelona NA Traction (new application).M 2. Appeal Relating to the Jurisdiction of the ICAO Council 3. Fisheries Jurisdiction (UK v. Iceland).M 4. Fisheries Jurisdiction (FR Germany v. Iceland).M 5. Nuclear Tests (Australia v. France).J 6. Border and Transborder Armed Actions (Nicaragua v. Honduras). Jurisdiction

Declaration

Joint Opinion

1. Aegean Sea NA Continental Shelf.IMP 2. Aegean Sea Continental Shelf.J 3. US Diplomatic and Consular Staff in Tehran.PO 4. Military and Paramilitary Activities in and against Nicarauga.M 5. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal). Judgment 6. Lockerbie (Libya v. UK). IMP 7. Lockerbie (Libya v. USA). IMP

Individual (Separate) Opinion 1. North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL) 2. Application for Review of UNAT Judgment No. 273.AO

Dissenting Opinion NA

Joint Dissenting Opinion

776 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

Certain Frontier Land

Sir Hersch Lauterpacht (UK) 1955–1960

7. Application for Review of UNAT Judgment No. 158.AO 8. Western Sahara.AO 9. Application for Review of UNAT Judgment No. 333.AO

Declaration

Guy Ladreit de Lacharrière (France) 1982–1987

Judge

Table (cont.)

NA

NA

Joint Declaration

Joint Opinion

1. Certain Norwegian Loans.J 2. Guardianship of Infant.J 3. Interhandel. IMP

NA

Frontier Dispute Military and (Burkina Faso/ Paramilitary Mali) Activities in and against Nicarauga.Intv

8. Interpretation of Agreement between WHO and Egypt.AO

Individual (Separate) Opinion

Interhandel.J

NA

Dissenting Opinion

Aerial Incident of 7 July 1955 (Israel v. Bulgaria).PO

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 777

Declaration

Joint Declaration

Sir Arnold Duncan Monetary Gold.PO NA McNair (UK) 1946–1955

Judge

Table (cont.) Joint Opinion

1. Anglo-Iran Oil NA Company.PO 2. International Status of South-West Africa.AO

4. Voting Procedures on Questions Relating to the Reports and Petitions Concerning the Territory of South-West Africa.AO 5. Admissibility of Hearings on Committee on South-West Africa.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Fisheries Ambatielos.M Jurisdiction (UK v. Norway) 1. Ambatielos.PO 2. Admission of a State to the UN Membership.AO 3. Reservations to the Genocide Convention

Dissenting Opinion

778 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Temple of Preah Vihear.M

NA

Gaetano Morelli (Italy) 1961–1970

Joint Declaration

1. Arbitral Award NA of 31 July 1989 (Guinea Bissau v. Senegal). Judgment 2. Land and Maritime Boundary between Cameroon and Nigeria.IMP

Declaration

Kéba Mbaye (Senegal) 1982–1991

Judge

Table (cont.)

1. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria).M

Joint Opinion

1. Temple of NA Preah Vihear.PO 2. South-West Africa.M 3. Northern Cameroons 4. Barcelona Traction (new application).M 5. Certain Expenses of the UN.AO

1. Continental Shelf (Libya/ Malta).Intv 2. Continental Shelf (Libya/ Malta).M

Individual (Separate) Opinion NA

Joint Dissenting Opinion

1. South-West NA Africa.PO 2. Barcelona Traction (new application).PO 3. North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL)

NA

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 779

1. Certain Norwegian Loans.J 2. Arbitral Award made by the King of Spain of 1906

Declaration

Platon Dmitrievich NA Morozov (USSR) 1970–1985

Lucio Manuel Moreno Quintana (Argentina) 1955–1964

Judge

Table (cont.)

NA

NA

Joint Declaration

Joint Opinion

1. Aegean Sea NA Continental Shelf.IMP 2. Aegean Sea Continental Shelf.J 3. Continental Shelf (Tunisia/ Libya).Intv 4. Continental Shelf (Libya/ Malta).Intv

Guardianship of NA Infant.J

Individual (Separate) Opinion Admissibility of Hearings on Committee on South-West Africa.AO

Joint Dissenting Opinion

1. Appeal NA Relating to the Jurisdiction of the ICAO Council 2. US Diplomatic and Consular Staff in Tehran.PO 3. Delimitation of Maritime

1. Right of Passage over Indian Territory.M 2. Certain Frontier Land 3. Temple of Preah Vihear.M 4. Constitution of the Maritime Safety Committee.AO 5. Certain Expenses of the UN.AO

Dissenting Opinion

780 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Hermann Mosler (Germany) 1976–1985

Judge

Table (cont.)

NA

Declaration

NA

Joint Declaration

1. Aegean Sea Continental Shelf.IMP 2. Military and Paramilitary

Individual (Separate) Opinion

1. Military and Paramilitary Activities in and against Nicarauga.IMP

Joint Opinion

Continental Shelf (Libya/Malta).M

Boundary in the Gulf of Maine Area Chamber Constitution 4. Application for Review of UNAT Judgment No. 158.AO 5. Western Sahara.AO 6. Interpretation of Agreement between WHO and Egypt.AO 7. Application for Review of UNAT Judgment No. 273.AO

Dissenting Opinion

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 781

Nagendra Singh (India) 1973–1988

Judge

Table (cont.)

1. Fisheries Jurisdiction (UK v. Iceland).M 2. Fisheries Jurisdiction (FR Germany v. Iceland).M 3. Nuclear Tests (Australia v. France).IMP 4. Nuclear Tests (New Zealand v. France).IMP

Declaration

NA

Joint Declaration

Joint Opinion

1. Trial of Pakistani Prisoners of War.IMP 2. Aegean Sea Continental Shelf.IMP 3. Aegean Sea Continental Shelf.J 4. Continental Shelf (Libya/ Malta).Intv

Dissenting Opinion

Joint Dissenting Opinion

1. Fisheries Appeal Relating to NA Jurisdiction the Jurisdiction of (UK v. the ICAO Council Iceland).M 2. Fisheries Jurisdiction (FR Germany v. Iceland).M

Activities in 2. Military and and against Paramilitary Nicarauga.PO Activities in 3. Interpretation and against of Agreement Nicarauga.Intv between WHO and Egypt.AO 4. Application for Review of UNAT Judgment No. 273

Individual (Separate) Opinion

782 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Ni Zhengyu (China) 1985–1994

Judge

Table (cont.)

1. Lockerbie (Libya v. UK). IMP 2. Lockerbie (Libya v. USA). IMP

5. Application for Review of UNAT Judgment No. 158.AO 6. Western Sahara.AO

Declaration

NA

Joint Declaration

1. Military and Paramilitary Activities in and against Nicarauga.M

5. Military and Paramilitary Activities in and against Nicarauga.Intv 6. Military and Paramilitary Activities in and against Nicarauga.PO 7. Military and Paramilitary Activities in and against Nicarauga.M 8. Application for Review of UNAT Judgment No. 273

Individual (Separate) Opinion

NA

Joint Opinion

NA

Dissenting Opinion

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 783

Shigeru Oda (Japan) 1976–2003

Judge

Table (cont.)

Joint Declaration

1. Delimitation Legality of use of of Maritime Force (Yugoslavia Boundary v. U.S.A.).IMP in the Gulf of Maine Area.Chamber Constitution 2. Revision and Interpretation of 24 February 1982 Judgment (Tunisia/Libya) 3. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras). Chamber Constitution

Declaration

Joint Opinion

1. Continental NA Shelf (Tunisia/ Libya).Intv 2. Military and Paramilitary Activities in and against Nicarauga.Intv 3. Border and Transborder Armed Actions (Nicaragua v. Honduras). Jurisdiction 4. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).Intv

2. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal). Judgment

Individual (Separate) Opinion

1. Continental Shelf (Tunisia/ Libya).Judgment 2. Continental Shelf (Libya/ Malta).Intv 3. Continental Shelf (Libya/ Malta).M 4. Military and Paramilitary Activities in and against Nicarauga.M 5. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).M

Dissenting Opinion

NA

Joint Dissenting Opinion

784 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

4. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).M 5. Maritime Delimitation in the Area between Greenland and Jan Mayen 6. Lockerbie (Libya v. UK). IMP 7. Lockerbie (Libya v. USA). IMP 8. Application of the Genocide Convention. Additional IMP 9. Application of the Genocide Convention

Declaration

Joint Declaration

5. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).Intv 6. Elettronica Sicula S. p. A. (ELSI).Judgment 7. Maritime Delimitation in the Area between Greenland and Jan Mayen.J 8. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal). Judgment 9. East Timor 10. Passage through the Great Belt.IMP

Individual (Separate) Opinion

Joint Opinion

6. Certain Phosphate Lands in Nauru. PO 7. Maritime Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction(Part I) 8. Maritime Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction (Part II) 9. Lockerbie (Libya v. UK).PO 10. Lockerbie (Libya v. USA). PO 11. Oil Platforms.PO

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 785

Judge

Table (cont.)

(Bosnia and Herzegovina v. Serbia and Montenegro).PO 10. Land and Maritime Boundary between Cameroon and Nigeria.IMP 11. Interpretation of Judgment of 20 December 1974 in Nuclear Tests Case (New Zealand v. France) 12. Vienna Convention on Consular Relations.IMP 13. LaGrand Case. IMP

Declaration

Joint Declaration

11. Oil Platforms. Counterclaims 12. Land and Maritime Boundary between Cameroon and Nigeria.PO 13. Fisheries Jurisdiction (Spain v. Canada) 14. Kasikili/ Sedudu Island 15. Legality of Use of Force (Yugoslavia v. Belgium).IMP 16. Legality of Use of Force (Yugoslavia v. Canada).IMP

Individual (Separate) Opinion

Joint Opinion

12. GabcikovoNagymaros Project 13. Arrest Warrant of 11 April 2000 (Congo v. Belgium) 14. 1. LaGrand Case (Germany v. USA).M 15. Legality of the Use or Threat of Nuclear Weapons.AO

Dissenting Opinion

Joint Dissenting Opinion

786 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

14. Armed Activities in Territory of Congo (DR Congo v. Uganda).IMP 15. Arrest Warrant of 11 April 2000.IMP 16. Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malayasia) 17. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria).M

Declaration

Joint Declaration

17. Legality of Use of Force (Yugoslavia v. France).IMP 18. Legality of Use of Force (Yugoslavia v. Germany).IMP 19. Legality of Use of Force (Yugoslavia v. Italy).IMP 20. Legality of Use of Force (Yugoslavia v. NL).IMP 20. Legality of Use of Force (Yugoslavia v. Portugal).IMP 20. Legality of Use of Force (Yugoslavia v. Spain).IMP

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 787

Judge

Table (cont.)

18. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria).M 19. Avena and other Mexican Nationals (Mexico v. U.S.A.).IMP

Declaration

Joint Declaration

20. Legality of Use of Force (Yugoslavia v. UK).IMP 20. Legality of Use of Force (Yugoslavia v. USA).IMP 21. Aerial Incident of 10 September 1999 22. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M 22. Interpretation of Agreement between WHO and Egypt.AO

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

788 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Joint Declaration

23. Application for Review of UNAT Judgment No. 273.AO 24. Application for Review of UNAT Judgment No. 333.AO 25. Applicability of the Obligation under UN HQ Agreement.AO 26. Applicability of Article VI, Section 22 of the Privileges & Immunities Convention.AO 27. Legality of the Use by a State of Nuclear Weapons

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 789

Declaration

Charles D. 1. Nuclear Tests Onyeama (Nigeria) (Australia v. 1967–1976 France).Intv 2. Nuclear Tests (New Zealand v. France).Intv

Judge

Table (cont.)

in Armed Conflict.AO 28. Difference Relating to Immunity from Legal Process of Special Rapporteur of UN Human Rights Commission. AO 29. Legality of Use of Force (Yugoslavia v. Spain).IMP



Individual (Separate) Opinion

Joint Opinion

1. Barcelona 1. Legal NA Traction (new Consequences application).M for States for 2. Nuclear Tests Continued (Australia v. Presence of France).J South Africa in Namibia.AO

Joint Declaration

Joint Dissenting Opinion

1. Fisheries 1. Nuclear Tests Jurisdiction (UK (Australia v. v. Iceland).M France).J 2. Fisheries 2. Nuclear Tests Jurisdiction (New Zealand v. (FR Germany v. France).J Iceland).M

Dissenting Opinion

790 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Hisashi Owada (Japan) 2003–continues

Judge

Table (cont.)

Case concerning certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M

Declaration

NA

Joint Declaration

1. Oil Platforms (Iran v. USA).M 2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.AO 3. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).M

2. Application for Review of UNAT Judgment No. 158.AO

Individual (Separate) Opinion

Armed Activities NA on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda). Jurisdiction

Joint Opinion

Dissenting Opinion

1. Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Croatia Croatia v. Serbia. Serbia).PO 2. Case concerning certain Property (Liechtenstein v. Germany) 3. Request for the Interpretation of the Judgment

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 791

Declaration

Luis Padilla Nervo NA (Mexico) 1964–1973

Judge

Table (cont.)

Fisheries Jurisdiction (UK v. Iceland).IMP

Joint Declaration

Joint Opinion

1. Barcelona NA Traction (new application).M 2. North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL) 3. Fisheries Jurisdiction (UK v. Iceland). Jurisdiction

Individual (Separate) Opinion of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United states of America).PO

Joint Dissenting Opinion

1. South-West NA Africa.M 2. Fisheries Jurisdiction (FR Germany v. Iceland).IMP 3. Fisheries Jurisdiction (FR Germany v. Iceland). Jurisdiction 4. Fisheries Jurisdiction (UK v. Iceland).IMP

Dissenting Opinion

792 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Gonzalo ParraAranguren (Venezuela) 1996–2009

Judge

Table (cont.)

Maritime Delimitation between Nicaragua and Honduras in the Carribean Sea.

Declaration

1. Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Croatia Croatia v. Serbia. Serbia). PO 2. Territorial and Maritime Dispute (Nicaragua v. Colombia).PO

Joint Declaration

Joint Opinion

1. Oil Platforms. NA PO 2. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).PO 3. Land and Maritime Boundary between Cameroon and Nigeria.PO 4. Legality of Use of Force (Yugoslavia v. Belgium).IMP

4. Legal Consequences for States for Continued Presence of South Africa in Namibia.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. GabcikovoNA Nagymaros Project 2. Kasikili/Sedudu Island

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 793

Judge

Table (cont.)

Declaration

Individual (Separate) Opinion 5. Legality of Use of Force (Yugoslavia v. Canada).IMP 6. Legality of Use of Force (Yugoslavia v. France).IMP 7. Legality of Use of Force (Yugoslavia v. Germany).IMP 8. Legality of Use of Force (Yugoslavia v. Italy).IMP 9. Legality of Use of Force (Yugoslavia v. NL).IMP 10. Legality of Use of Force (Yugoslavia v. Portugal).IMP

Joint Declaration

3. Legality of use of Force (Yugoslavia v. U.S.A.).IMP

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

794 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Joint Declaration

11. Legality of Use of Force (Yugoslavia v. Spain).IMP 12. Legality of Use of Force (Yugoslavia v. UK).IMP 13. Legality of Use of Force (Yugoslavia v. USA).IMP 14. Arrest Warrant of 11 April 2000.IMP 15. Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore)

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 795

Judge

Table (cont.)

Declaration

Joint Declaration

16. Case concerning certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M 17. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M 18. Oil Platforms (Iran v. USA).M 19. Land and Maritime Boundary between Cameroon

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

796 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Sture Petrén (Sweden) 1967–1976

Judge

Table (cont.)

NA

Declaration

Barcelona Traction (new application).M

Joint Declaration

Joint Opinion

1. Appeal NA Relating to the Jurisdiction of the ICAO Council 2. Nuclear Tests (Australia v. France).J 3. Nuclear Tests (New Zealand v. France). Judgment

and Nigeria (Cameroon v. Nigeria).M 20. LaGrand Case (Germany v. USA).M 21. Legality of Use of Force (Yugoslavia v. Spain).IMP 22. Avena and other Mexican Nationals (Mexico v. U.S.A.).M

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Fisheries NA Jurisdiction (UK v. Iceland). Continuation of IMP 2. Fisheries Jurisdiction (UK v. Iceland).M 3. Fisheries Jurisdiction (FR Germany v. Iceland). Continuation of IMP

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 797

Raymond Ranjeva (Madagascar) 1991–2009

Judge

Table (cont.)

1. Maritime Delimitation in the Area between Greenland and Jan Mayen 2. Land and Maritime Boundary between Cameroon and Nigeria.IMP

Declaration

1. Lockerbie (Libya v. UK).PO 2. Lockerbie (Libya v. UK).PO 3. Lockerbie (Libya v. USA).PO 4. Legality of Use of Force (Serbia v. Belgium).PO

Joint Declaration

Joint Opinion

1. East Timor NA 2. Oil Platforms. PO 3. Legality of the Use or Threat of Nuclear Weapons.AO 4. Territorial and Maritime Dispute (Nicaragua v. Colombia).PO

4. Trial of Pakistani Prisoners of War.IMP 5. Legal Consequences for States for Continued Presence of South Africa in Namibia.AO 6. Western Sahara.AO

Individual (Separate) Opinion

1. Lockerbie (Libya v. UK).IMP 2. Lockerbie (Libya v. USA).IMP 3. GabcikovoNagymaros Project.J 4. Fisheries Jurisdiction (Spain v. Canada)

4. Fisheries Jurisdiction (FR Germany v. Iceland).M 5. Nuclear Tests (Australia v. France).IMP 6. Nuclear Tests (New Zealand v. France).IMP

Dissenting Opinion

1. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal). Judgment 2. Application of The Convention on The Prevention and Punishment of The Crime of Genocide

Joint Dissenting Opinion

798 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

3. Interpretation of Judgment of 20 December 1974 in Nuclear Tests Case (New Zealand v. France) 4. Kasikili/ Sedudu Island 5. Arrest Warrant of 11 April 2000.IMP 6. Legality of the Use by a State of Nuclear Weapons in Armed Conflict.AO 7. Frontier Dispute (Benin/Niger) 8. Arrest Warrant of 11 April 2000 (Congo v. Belgium)

Declaration

Individual (Separate) Opinion

5. Application 5. Maritime of The Delimitation Convention between on The Nicaragua and Prevention and Honduras in Punishment the Carribean of The Crime Sea of Genocide 6. Case (Croatia concerning Croatia v. certain Serbia. Questions Serbia).PO of Mutual 6. Legality of Assistance Use of Force in Criminal (Serbia v. Matters Canada).PO (Djibouti v. 7. Legality of France).M the Use of 7. Land and Force (Serbia Maritime v. United Boundary Kingdom).PO between 8. Legality of the Cameroon Use of Force and Nigeria (Serbia v. (Cameroon v. Germany).PO Nigeria).M

Joint Declaration

Joint Opinion

Dissenting Opinion

(Croatia Croatia v. Serbia. Serbia).PO 3. Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation).PO 4. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M 5. Application of the Genocide Convention (Bosnia and

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 799

Sir Benegal Rau (India) 1952–1953

Judge

Table (cont.)

NA

9. Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) 10. Pulp Mills on the River Uruguay (Argentina v. Uruguay).PO 11. Oil Platforms (Iran v. USA).M 12. Avena and other Mexican Nationals (Mexico v. U.S.A.).M

Declaration

Individual (Separate) Opinion

NA

NA

9. Legality of the 8. Application of Use of Force the Genocide (Serbia v. Convention Italy).PO (Bosnia and 10. Legality of the Herzegovina Use of Force v. Serbia and (Serbia v. MontePortugal).PO negro).M 11. Legality of the Use of Force (Serbia v. France).PO 12. Legality of the Use of Force (Serbia v. Netherlands).PO

Joint Declaration

NA

Joint Opinion

NA

Dissenting Opinion

Rights of US Nationals in Morocco.J

Herzegovina v. Serbia and Montenegro).M

Joint Dissenting Opinion

800 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Declaration

John Erskine Read NA (Canada) 1946–1958

Judge

Table (cont.)

NA

Joint Declaration

Joint Opinion

1. Anglo-Iran Oil NA Company.PO 2. Monetary Gold.PO 3. International Status of South-West Africa.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Fisheries 1. Ambatielos.M Jurisdiction (UK v. Norway). Judgment 1. Asylum (Colombia/ Peru).J 2. Certain Norwegian Loans.J 3. Interpretation of Peace Treaties (Questions 3&4).AO 4. Reservations to the Genocide Convention.AO 5. ILOAT Judgments on Complains made against UNESCO.AO 7. Nottebohm (second phase)

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 801

Francisco Rezek (Brazil) 1996–2006

Judge

Table (cont.)

Joint Declaration

1. GabcikovoNA Nagymaros Project 2. Application for revision of the judgment of 11 July 1996 in the case concerning application of the convention on the prevention and punishment of the crime of genocide (Yugoslavia v. Bosnia and Herzegovina v.).PO 3. Land and Maritime Boundary between Cameroon

Declaration

Joint Opinion

1. Lockerbie NA (Libya v. UK).PO 2. Lockerbie (Libya v. USA).PO 3. Difference Relating to Immunity from Legal Process of Special Rapporteur of UN Human Rights Commission.AO 4. Arrest Warrant of 11 April 2000 (Congo v. Belgium)

Individual (Separate) Opinion Kasikili/Sedudu Island

Dissenting Opinion NA

Joint Dissenting Opinion

802 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

Revision and Interpretation of 24 February 1982 Judgment (Tunisia/Libya)

José Maria Ruda (Argentina) 1973–1991

and Nigeria (Cameroon v. Nigeria).M

Declaration

Francois Rigaux (Belgium)

Judge

Table (cont.)

NA

NA

Joint Declaration

Joint Opinion

1. Aegean Sea Continental Shelf.IMP 2. Military and Paramilitary Activities in and against Nicarauga.PO 3. Military and Paramilitary Activities in and against Nicarauga.M

NA

Dissenting Opinion

1. Fisheries Western Jurisdiction Sahara.AO (UK v. Iceland).M 2. Fisheries Jurisdiction (FR Germany v. Iceland).M 3. Continental Shelf (Libya/ Malta).M 4. Military and Paramilitary Activities in

1. Oil Platforms NA (Iran v. USA). PO 2. Oil Platforms (Iran v. USA). Counter-claims 3. Oil Platforms (Iran v. USA).M

Individual (Separate) Opinion

NA

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 803

Stephen M. Schwebel (USA) 1981–2000

Judge

Table (cont.)

Joint Declaration

1. Revision and NA Interpretation of 24 February 1982 Judgment (Tunisia/Libya) 2. GabcikovoNagymaros Project.J 3. Interpretation of Judgment of 20 December 1974 in Nuclear Tests Case (New Zealand v. France)

Declaration

Joint Opinion

1. Continental NA Shelf (Tunisia/ Libya).Intv 2. Continental Shelf (Tunisia/ Libya).Judgment 3. Delimitation of Maritime Boundary in the Gulf of Maine Area 4. Border and Transborder Armed Actions

4. Interpretation and against of Agreement Nicarauga.Intv between WHO and Egypt.AO 5. Application for Review of UNAT Judgment No. 273

Individual (Separate) Opinion

1. Continental Shelf (Libya/ Malta).Intv 2. Continental Shelf (Libya/ Malta).M 3. Military and Paramilitary Activities in and against Nicarauga.IMP 4. Military and Paramilitary Activities in and against Nicarauga.Intv

Dissenting Opinion

NA

Joint Dissenting Opinion

804 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

4. Vienna Convention on Consular Relations.IMP

Declaration

Joint Declaration

(Nicaragua v. Honduras). Jurisdiction 5. Maritime Delimitation in the Area between Greenland and Jan Mayen 6. Maritime Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction (PartI) 7. Fisheries Jurisdiction (Spain v. Canada) 8. LaGrand Case. IMP

Individual (Separate) Opinion

Joint Opinion

5. Military and Paramilitary Activities in and against Nicarauga.PO 6. Military and Paramilitary Activities in and against Nicarauga.M 7. Elettronica Sicula S. p. A. (ELSI).Judgment 8. Certain Phosphate Lands in Nauru.PO 9. Maritime Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction (PartII)

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 805

Bernardo Sepúlveda-Amor (Mexico) 2006–continues

Judge

Table (cont.)

NA

Declaration

NA

Joint Declaration

1. Disputes Regarding Navigational and Related

9. Applicability of the Obligation under UN HQ Agreement. AO (order of 9 March 1988) 10. Applicability of the Obligation under UN HQ Agreement.AO

Individual (Separate) Opinion

NA

Joint Opinion

Request for the Interpretation of the Judgment

10. Lockerbie (Libya v. UK).PO 11. Lockerbie (Libya v. USA). PO 12. Oil Platforms (Iran v. USA).PO 13. Application for Review of UNAT Judgment No. 273.AO 14. Application for Review of UNAT Judgment No. 333.AO 15. Legality of the Use or Threat of Nuclear Weapons.AO

Dissenting Opinion

NA

Joint Dissenting Opinion

806 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

1. Maritime Delimitation and Territorial Questions between Qatar

Mohamed Shahabuddeen (Guyana) 1988–1997

Joint Declaration

NA

Declaration

José Sette-Camara NA (Brazil) 1979–1988

Judge

Table (cont.) Joint Opinion

1. Border and NA Transborder Armed Actions (Nicaragua v. Honduras). Jurisdiction

1. Continental NA Shelf (Libya/ Malta).M 2. Military and Paramilitary Activities in and against Nicarauga.M 3. Interpretation of Agreement between WHO and Egypt.AO

Rights (Costa Rica v. Nicaragua).M 2. Avena and other Mexican Nationals (Mexico v. U.S.A.).M

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).Intv

NA

1. Continental NA Shelf (Libya/ Malta).Intv 2. Territorial Dispute (Libya/ Chad)

of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United States of America).M

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 807

Judge

Table (cont.)

and Bahrain. Jurisdiction (Part I) 2. Land and Maritime Boundary between Cameroon and Nigeria.IMP

Declaration

Joint Declaration

2. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras). Chamber Constitution 3. Maritime Delimitation in the Area between Greenland and Jan Mayen.J 4. Certain Phosphate Lands in Nauru.PO 5. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal).IMP 6. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal). Judgment

Individual (Separate) Opinion

Joint Opinion

2. Maritime Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction (Part II) 3. Legality of the Use by a State of Nuclear Weapons in Armed Conflict.AO 4. Legality of the Use or Threat of Nuclear Weapons.AO

Dissenting Opinion

Joint Dissenting Opinion

808 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)



Declaration

Joint Declaration

7. Territorial Dispute (Libya/Chad) 8. East Timor 9. Passage through the Great Belt.IMP 10. Lockerbie (Libya v. UK).IMP 11. Lockerbie (Libya v. USA). IMP 12. Oil Platforms (Iran v. USA).PO 13. Application of the Genocide Convention. Additional IMP 14. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).PO

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 809

Declaration

Shi Jiuyong (China) 1. Legality of 1994–2010 Use of Force (Yugoslavia v. France).IMP

Judge

Table (cont.)

15. Interpretation of Judgment of 20 December 1974 in Nuclear Tests Case (New Zealand v. France) 16. Applicability of the Obligation under UN HQ Agreement.AO 17. Applicability of Article VI, Section 22 of the Privileges & Immunities Convention.AO

Individual (Separate) Opinion

1. Application of LaGrand Case the Genocide (Germany v. Convention USA).M (Bosnia and Herzegovina

Joint Declaration

NA

Joint Opinion

1. Legality of Use of Force (Yugoslavia v. Belgium).IMP 2. Legality of Use of Force

Dissenting Opinion

1. Application of the International Convention on the Elimination

Joint Dissenting Opinion

810 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Joint Declaration

v. Serbia and Montenegro).PO 2. Land and Maritime Boundary between Cameroon and Nigeria.IMP 3. Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Croatia Croatia v. Serbia Serbia). PO 4. Application of the Genocide

Declaration

2. Legality of Use of Force (Yugoslavia v. Germany).IMP 3. Legality of Use of Force (Yugoslavia v. Italy).IMP 4. Legality of Use of Force (Yugoslavia v. Spain).IMP 5. Legality of Use of Force (Yugoslavia v. UK).IMP 6. Legality of Use of Force (Yugoslavia v. USA).IMP 7. Legality of the Use or Threat of Nuclear Weapons.AO

Individual (Separate) Opinion

Joint Opinion

(Yugoslavia v. Canada).IMP 3. Legality of Use of Force (Yugoslavia v. NL).IMP 4. Legality of Use of Force (Yugoslavia v. Portugal).IMP

Dissenting Opinion of all forms of Racial Discrimination (Georgia v. Russian Federation).PO

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 811

Judge

Table (cont.)

Joint Declaration

8. Legality of the Convention Use of Force (Bosnia and (Serbia v. Herzegovina Canada).PO v. Serbia and 9. Legality of Montethe Use of negro).M Force (Serbia v. United Kingdom).PO 10. Legality of the Use of Force (Serbia v. Germany).PO 11. Legality of the Use of Force (Serbia v. Italy).PO 12. Legality of the Use of Force (Serbia v. Portugal).PO 13. Legality of the Use of Force (Serbia v. France).PO

Declaration

Individual (Separate) Opinion

Joint Opinion

Dissenting Opinion

Joint Dissenting Opinion

812 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Bruno Simma (Germany) 2003–continues

Judge

Table (cont.)

NA

14. Legality of the Use of Force (Serbia v. Netherlands). PO 15. Legality of use of Force (Yugoslavia v. U.S.A.).IMP 16. Legality of Use of Force (Yugoslavia v. Spain).IMP 17. Avena and other Mexican Nationals (Mexico v. U.S.A.).M

Declaration

1. Territorial and Maritime Dispute (Nicaragua v. Colombia).PO 2. Case Concerning

Joint Declaration

Oil Platforms (Iran v. USA).M

Individual (Separate) Opinion

1. Armed Activities on the Territory of the Congo (New Application: 2002)

Joint Opinion

NA

Dissenting Opinion

1. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 813

Leonid Skotnikov (Russian Federation) 2006–continues

Judge

Table (cont.)

1. Pulp Mills on the River Uruguay (Argentina v. Uruguay).M 2. Case concerning certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M 3. Application of the Genocide Convention

Declaration

NA

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).M

Joint Declaration

(Democratic Republic of the Congo v. Rwanda). Jurisdiction

Joint Opinion

Disputes NA Regarding Navigational and Related Rights (Costa Rica v. Nicaragua).M

Individual (Separate) Opinion (Malaysia/ Singapore) 2. Pulp Mills on the River Uruguay (Argentina v. Uruguay).M

Joint Dissenting Opinion

1. Application of 1. Application The Convention of the on The International Prevention and Convention on Punishment the Elimination of The Crime of all forms of Genocide of Racial (Croatia v. Discrimination Serbia).PO (Georgia 2. Request for the v. Russian Interpretation Federation).PO of the 2. Questions Judgment of relating to the 31 March 2004 Obligation in the Case to Prosecute concerning or Extradite Avena and (Belgium v. other Mexican Senegal).PO

Dissenting Opinion

814 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

1. South-West Africa.M 2. Barcelona Traction (new application).PO

1. Right of Passage over Indian Territory.M

Jean Spiropoulos (Greece) 1958–1967

(Bosnia and Herzegovina v. Serbia and Montenegro).M

Declaration

Sir Percy Claude Spender (Australia) 1958–1967

Judge

Table (cont.)

NA

NA

Joint Declaration

Joint Opinion

1. Ambatielos.PO NA

1. Guardianship NA of Infant. J 2. Interhandel. J 3. Arbitral Award made by the King of Spain of 1906 4. Temple of Preah Vihear.PO 5. Northern Cameroons 6. Certain Expenses of the UN.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Interhandel.J

NA

1. Right of Passage 1. Aerial Incident over Indian of 7 July 1955 Territory.M (Israel v. 2. Temple of Bulgaria).PO Preah Vihear.M 2. South-West Africa.PO

Nationals (Mexico v. United states of America).PO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 815

Kotaro Tanaka (Japan) 1961–1970

Judge

Table (cont.)

NA

2. Guardianship of Infant.J 3. Certain Frontier Land 4. South-West Africa.PO 5. Northern Cameroons 6. Barcelona Traction (new application).PO 7. Certain Expenses of the UN.AO

Declaration

Individual (Separate) Opinion

Joint Opinion

1. Temple 1. Barcelona NA of Preah Traction (new Vihear.PO application).PO 2. Temple of 2. Barcelona Preah Vihear.M Traction (new application).M

Joint Declaration

1. South-West Africa.M 2. North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL)

Dissenting Opinion

NA

Joint Dissenting Opinion

816 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

1. Arbitral Award 1. Lockerbie of 31 July 1989 (Libya v. (Guinea Bissau UK).IMP v. Senegal). 2. Lockerbie Judgment (Libya v. 2. Passage USA).IMP through the Great Belt.IMP 3. Application of the Genocide Convention.IMP

Nikolai Konstantinovitch Tarassov (Russia) 1985–1995

NA

Joint Declaration

NA

Declaration

Salah El Dine Tarazi (Syria) 1976–1980

Judge

Table (cont.)

NA

1. Aegean Sea Continental Shelf.IMP 2. Aegean Sea Continental Shelf.J

Individual (Separate) Opinion

NA

NA

Joint Opinion

1. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).Intv 2. Application of the Genocide Convention. Additional IMP

US Diplomatic and Consular Staff in Tehran.PO

Dissenting Opinion

NA

NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 817

Peter Tomka (Slovakia) 2003–continues

Judge

Table (cont.)

NA

Declaration

Individual (Separate) Opinion

Territorial and 1. Case Maritime Dispute concerning (Nicaragua v. certain Colombia).PO Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M 2. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).M 3. Avena and other Mexican Nationals (Mexico v. U.S.A.).M

Joint Declaration

Application of NA The Convention On The Prevention and Punishment of The Crime of Genocide (Croatia Croatia v. Serbia. Serbia).PO

Joint Opinion

Dissenting Opinion 1. Request for the Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and other Mexican Nationals (Mexico v. United States of America).PO 2. Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation).PO

Joint Dissenting Opinion

818 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Vladlen Stepanovich Vereshchetin (Russia) 1995–2006

Judge

Table (cont.)

1. Legality of Use of Force (Yugoslavia v. France).IMP 2. Legality of Use of Force (Yugoslavia v. Germany).IMP 3. Legality of Use of Force (Yugoslavia v. Italy).IMP 4. Legality of Use of Force (Yugoslavia v. Spain).IMP 5. Legality of Use of Force (Yugoslavia v. UK).IMP 6. Legality of Use of Force (Yugoslavia v. USA).IMP

Declaration

Individual (Separate) Opinion

Joint Opinion

1. Application of 1. East Timor 1. Certain the Genocide 2. Land and Criminal Convention Maritime Proceedings (Bosnia and Boundary in France Herzegovina between (Republic of v. Serbia and Cameroon and the Congo v. MonteNigeria.PO France).PO negro).PO 3. Avena and 2. Land and other Mexican Maritime Nationals Boundary (Mexico v. between U.S.A.).M Cameroon and Nigeria.IMP

Joint Declaration

1. GabcikovoNagymaros Project 2. Fisheries Jurisdiction (Spain v. Canada) 3. Legality of Use of Force (Yugoslavia v. Belgium).IMP 4. Legality of Use of Force (Yugoslavia v. Canada).IMP 5. Legality of Use of Force (Yugoslavia v. NL).IMP 6. Legality of Use of Force (Yugoslavia v. Portugal).IMP

Dissenting Opinion NA

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 819

Sir Humphrey Waldock (UK) 1973–1981

Judge

Table (cont.)

1. Nuclear Tests (Australia v. France).IMP 2. Nuclear Tests (New Zealand v. France).IMP

7. Legality of the Use or Threat of Nuclear Weapons.AO 8. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M 9. Legality of use of Force (Yugoslavia v. U.S.A.).IMP 10. Legality of Use of Force (Yugoslavia v. Spain).IMP

Declaration

1. Nuclear Tests (Australia v. France).J 2. Nuclear Tests (Australia v. France).Intv

Joint Declaration

1. Fisheries Jurisdiction (UK v. Iceland).M 2. Fisheries Jurisdiction

Individual (Separate) Opinion

NA

Joint Opinion

NA

7. Application for revision of the judgment of 11 July 1996 in the case concerning application of the convention on the prevention and punishment of the crime of genocide (Yugoslavia v. Bosnia and Herzegovina v.).PO

Dissenting Opinion

1. Nuclear Tests (Australia v. France).J 2. Nuclear Tests (New Zealand v. France).J

Joint Dissenting Opinion

820 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Christopher Gregory Weeramantry (Sri Lanka) 1991–2000

Judge

Table (cont.)

1. Legality of Use of Force (Yugoslavia v. France).IMP 2. Legality of Use of Force (Yugoslavia v. Germany).IMP 3. Legality of Use of Force (Yugoslavia v. Italy).IMP 4. Legality of Use of Force (Yugoslavia v. UK).IMP

Declaration

Individual (Separate) Opinion

Land and Maritime Boundary between Cameroon and Nigeria.IMP

Joint Opinion

1. Maritime NA Delimitation in the Area between Greenland and Jan Mayen 2. Application of the Genocide Convention. Additional IMP 3. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).PO 4. GabcikovoNagymaros Project

3. Nuclear Tests (FR Germany v. (New Zealand Iceland).M v. France).Intv.

Joint Declaration

Joint Dissenting Opinion

1. Arbitral Award NA of 31 July 1989 (Guinea Bissau v. Senegal). Judgment 2. East Timor 3. Lockerbie (Libya v. UK). IMP 4. Lockerbie (Libya v. USA). IMP 5. Application of the Genocide Convention. Counter-claims 6. Land and Maritime Boundary between Cameroon and Nigeria.PO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 821

Judge

Table (cont.)

Declaration

Joint Declaration

5. Difference Relating to Immunity from Legal Process of Special Rapporteur of UN Human Rights Commission. AO

Individual (Separate) Opinion

Joint Opinion

7. Fisheries Jurisdiction (Spain v. Canada) 8. Kasikili/Sedudu Island 9. Interpretation of Judgment of 11 June 1998 in Boundary Dispute between Cameroon and Nigeria 10. Legality of Use of Force (Yugoslavia v. Belgium).IMP 11. Legality of Use of Force (Yugoslavia v. Canada).IMP 12. Legality of Use of Force (Yugoslavia v. NL).IMP

Dissenting Opinion

Joint Dissenting Opinion

822 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Vi Kuiyuin Wellington Koo (China) 1957–1967

Judge

Table (cont.)

Temple of Preah Vihear.PO

Declaration

NA

Joint Declaration

Joint Opinion

1. Right of NA Passage over Indian Territory.M 2. Guardianship of Infant. J 3. Interhandel. J 4. Northern Cameroons 5. Barcelona Traction (new application).PO

Individual (Separate) Opinion

Joint Dissenting Opinion

1. Temple of Aerial Incident of Preah Vihear.M 7 July 1955 (Israel 2. South-West v. Bulgaria).PO Africa.M

13. Legality of Use of Force (Yugoslavia v. Portugal).IMP 14. Legality of the Use by a State of Nuclear Weapons in Armed Conflict.AO 15. Legality of the Use or Threat of Nuclear Weapons.AO

Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 823

NA

NA

Xue Hanqin (China) 2010–continues

Joint Declaration

1. Reparations for NA Injuries.AO 2. Admissibility of Hearings on Committee on South-West Africa.AO

Declaration

Bohdan Winiarski (Poland) 1946–1967

Judge

Table (cont.) Joint Opinion

NA

NA

1. South-West Corfu Channel.PO Africa.M 2. Effect of UNAT Awards of Compensation. AO 3. ILOAT Judgments on Complains made against UNESCO.AO

Individual (Separate) Opinion

Joint Dissenting Opinion

NA

NA

1. Corfu 1. Anglo-Iran Oil Channel.M Company.IMP 2. Interhandel.J 2. Right of Passage 3. South-West over Indian Africa.PO Territory.M 4. Admission of a State to the UN Membership.AO 5. Interpretation of Peace Treaties (Questions 1&2).AO 6. Certain Expenses of the UN.AO 7. Guardianship of infant.Judgment

Dissenting Opinion

824 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Declaration

Abdulqawi Ahmed Pulp Mills on the Yusuf (Somalia) River Uruguay 2009–continues (Argentina v. Uruguay).M

Judge

Table (cont.)

1. Territorial and Maritime Dispute (Nicaragua v. Colombia).Intv 2. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).PO 3. Case Concerning Ahmadou (Republic of Guinea v. Democratic Republic of the Congo).M

Joint Declaration

Joint Opinion

Case concerning NA certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France).M

Individual (Separate) Opinion NA

Dissenting Opinion

1. Territorial and Maritime Dispute (Nicaragua v. Colombia).Intv 2. Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).M

Joint Dissenting Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 825

Sir Muhammad Zafrulla Khan (Pakistan) 1954–1961 and 1964–1973

Judge

Table (cont.)

Joint Declaration

1. Guardianship 1. Fisheries of Infant. J Jurisdiction 2. Interhandel.J (UK v. Iceland). 3. Aerial Incident Jurisdiction of 7 July 1955 2. Fisheries (Israel v. Jurisdiction Bulgaria).PO (FR Germany 4. North Sea v. Iceland). Continental Jurisdiction Shelf (FR Germany/ Denmark; FR Germany/ NL).M 5. Appeal Relating to the Jurisdiction of the ICAO Council 6. Legal Consequences for States for Continued Presence of South Africa in Namibia.AO

Declaration

Joint Opinion

ILOAT NA Judgments on Complains made against UNESCO.AO

Individual (Separate) Opinion NA

Dissenting Opinion NA

Joint Dissenting Opinion

826 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Milovan Zoričić (Yugoslavia) 1946–1958

Judge

Table (cont.)

1. Corfu Channel.M 2. Asylum (Colombia/ Peru).J 3. International Status of South-West Africa.AO

Declaration

NA

Joint Declaration

NA

Individual (Separate) Opinion

Dissenting Opinion

Joint Dissenting Opinion

Corfu Channel.PO 1. Ambatielos.PO NA 2. Admission of a State to the UN Membership.AO 3. Interpretation of Peace Treaties (Questions 1&2).AO

Joint Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 827

Haya de la Torre.J

1. Nuclear Tests (Australia v. France).IMP 2. Nuclear Tests (Australia v. France).Intv 3. Nuclear Tests (New Zealand v. France).IMP 4. Nuclear Tests (New Zealand v. France).Intv

Luis Alayza y Paz Soldán (Peru)

Sir Garfield Barwick (Australia)

NA

NA

NA

Joint Declaration

NA

NA

Frontier Dispute (Burkina Faso/ Mali)

NA

NA

NA

NA

NA

1. Nuclear Tests NA (Australia v. France).J 2. Nuclear Tests (New Zealand v. France).J

NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

 * Only those Judges and Judges ad-hoc who have issued written declaration/opinions are covered here.

NA

Declaration

Georges Abi-Saab (Egypt)

Judge

( Judges ad hoc)

International Court of Justice

828 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

Interpretation of 20 November 1950 Judgment in Asylum Case

NA

Bengt Broms (Finland)

Caicedo Castilla (Colombia)

Philémon Beb a Don (Cameroon)

Declaration

Santiago Torres Bernárdez (Spain)

Judge

Table (cont.)

NA

NA

Passage through the Great Belt.IMP

NA

NA

NA

1. Land, Island NA and Maritime Frontier Dispute (El Salvador/ Honduras).M 2. Pulp Mills on the River Uruguay (Argentina v. Uruguay).M

NA

NA

Northern Cameroons

NA

Asylum NA (Colombia/Peru).J

NA

1. Fisheries Jurisdiction (Spain v. Canada) 2. Pulp Mills on the River Uruguay (Argentina v. Uruguay).PO 3. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).M

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

NA

NA

Joint Declaration

829

Mohamed Bennouna (Morrocco)

Judge

Table (cont.)

1. Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Croatia Croatia v. Serbia. Serbia).PO 2. Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore) 3. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).M

Declaration

Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).M

Joint Declaration Pulp Mills on the River Uruguay (Argentina v. Uruguay).PO

1. Territorial Dispute (Benin/ Niger) 2. Territorial and Maritime Dispute (Nicaragua v. Colombia).PO 3. Frontier Dispute (Benin v. Niger)

Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation).PO

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

830 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

NA

1. Interhandel.J

NA

NA

Sayeman Bula-Bula (DR Congo)

Jean-Yves de Cara (France)

Paul Carry (Switzerland)

Mohamed Ali Currim Chagla (India)

Igor Daxner (Czechoslovakia)

Declaration

Alphonse Boni (Ivory Coast)

Judge

Table (cont.)

NA

NA

NA

NA

NA

NA

Joint Declaration

NA

NA

NA

NA

1. Arrest Warrant of 11 April 2000 (Congo v. Belgium)

1. Western Sahara.AO

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

1. Corfu Channel.PO

NA

1. Right of Passage NA over Indian Territory.PO 2. Right of Passage over Indian Territory.M

NA

1. Certain Criminal Proceedings in France (Republic of the Congo v. France).PO

NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 831

NA

NA

Vojin Dimitrijevic (Yugoslavia)

Christopher J.R. Dugard (South Africa)

Judge

Table (cont.)

Declaration

NA

NA

Joint Declaration NA

1. Armed NA Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda). Jurisdiction

NA

1. Sovereignty over NA Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore)

1. Application for NA revision of the judgment of 11 July 1996 in the case concerning application of the convention on the prevention and punishment of the crime of genocide (Yugoslavia v. Bosnia and Herzegovina v.).PO

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

832 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

Manuel Fernandes NA (Portugal)

NA

NA

Paul Henning Fischer (Denmark)

Yves L. Fortier (Canada)

NA

NA

NA

Ahmed Sadek El-Kosheri (Egypt)

NA

Joint Declaration

NA

Declaration

Bohuslav Ečer (Czechoslovakia)

Judge

Table (cont.)

1. Maritime Delimitation and Territorial Questions between

NA

NA

NA

NA

NA

NA

NA

NA

NA NA

NA

1. Maritime Delimitation in the Area between Greenland and Jan Mayen. J

NA

NA

1. Right of Passage NA over Indian Territory.PO 2. Right of Passage over Indian Territory.M

1. Lockerbie (Libya v. UK). IMP 2. Lockerbie (Libya v. USA). IMP

1. Corfu NA Channel.M 2. Corfu Channel.C

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 833

NA

1. Legality of Use of Force (Yugoslavia v. Italy).IMP 2. Territorial and Maritime Dispute (Nicaragua v. Colombia).PO 3. Maritime Delimitation between Nicaragua and Honduras in the Carribean Sea.

Georgio Gaja (Italy)

Declaration

Thomas Franck (USA)

Judge

Table (cont.)

NA

NA

Joint Declaration

NA

NA

Qatar and Bahrain (Qatar v. Bahrain).M

NA

NA

NA

1. Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan

NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

834 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

1. Application of the Genocide Convention. Counter-claims

Paul Guggenheim (Switzerland)

Milenko Kreća (Yugoslavia)

4. Territorial and Maritime Dispute (Nicaragua v. Colombia).Intv 5. Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v. Russian Federation).PO

Declaration

David Goitein (Israel)

Judge

Table (cont.)

NA

NA

NA

Joint Declaration

1. Legality of Use of Force (Yugoslavia v. Spain).IMP

NA

NA

NA

NA

NA

1. Application of the Genocide Convention. Additional.IMP

1. Nottebohm. Second phase

1. Aerial Incident of 7 July 1955 (Israel v. Bulgaria).PO

NA

NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 835

Judge

Table (cont.)

Declaration

Joint Declaration 2. Legality of Use of Force (Serbia v. Belgium).PO 3. Legality of Use of Force (Serbia v. Canada).PO 4. Legality of the Use of Force (Serbia v. United Kingdom).PO 5. Legality of the Use of Force (Serbia v. Germany).PO 6. Legality of the Use of Force (Serbia v. Italy). PO 7. Legality of the Use of Force (Serbia v. Portugal).PO 8. Legality of the Use of Force (Serbia v. France).PO

2. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro). PO 3. Legality of Use of Force (Yugoslavia v. Belgium).IMP 4. Legality of Use of Force (Yugoslavia v. Canada).IMP 5. Legality of Use of Force (Yugoslavia v. France).IMP 6. Legality of Use of Force (Yugoslavia v. Germany).IMP 7. Legality of Use of Force (Yugoslavia v. Italy).IMP

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

836 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Judge

Table (cont.)

Declaration

Joint Declaration 9. Legality of the Use of Force (Serbia v. Netherlands).PO 10. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).M 11. Legality of Use of Force (Yugoslavia v. Spain).IMP

8. Legality of Use of Force (Yugoslavia v. NL).IMP 9. Legality of Use of Force (Yugoslavia v. Portugal).IMP 10. Legality of Use of Force (Yugoslavia v. UK).IMP 11. Legality of Use of Force (Yugoslavia v. USA).IMP 12. Application of The Convention on The Prevention and Punishment of The Crime of Genocide (Croatia v. Serbia).PO 13. Legality of use of Force (Yugoslavia v. U.S.A.).IMP

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 837

1. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro). PO

NA

Ahmed Mahiou (Algeria)

Declaration

Sir Elihu Lauterpacht (UK)

Judge

Table (cont.)

NA

NA

Joint Declaration NA

1. Application for NA revision of the judgment of 11 July 1996 in the case concerning application of the convention on the prevention and punishment of the crime of genocide (Yugoslavia v. Bosnia and Herzegovina v.).PO

1. Application of the Genocide Convention. Additional.IMP 2. Application of the Genocide Convention. Counter-claims

NA

1. Case NA Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).M 2. Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro).M

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

838 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

Declaration

Auguste Mampuya 1. Case Kanunk’a Tshiabo Concerning (DR Congo) Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).PO

Judge

Table (cont.)

NA

Joint Declaration

1. Case NA Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).M

2. Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).PO NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 839

NA

NA

Sir Louis Mbanefo NA (Nigeria) Johannes of NA ferhaus (The Netherlands)

Joint Declaration

NA

Declaration

Jean-Pierre NA Mavungu MvubidiNgoma (DR Congo)

Judge

Table (cont.)

1. Armed NA Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda). Jurisdiction 1. South-West NA Africa.PO NA NA

NA

1. South-West NA Africa.M 1. Guardianship of NA Infant.J

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

840 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

Syed Sharif Uddin Pirzada (Pakistan)

B.P. Jeevan Reddy (India)

Felipe H. Paolillo (Uruguay)

Judge

Table (cont.)

Declaration

NA

NA

Joint Declaration

1. Aerial Incident of 10 August 1999 (Pakistan v. India)

NA

NA

NA

NA

NA

1. Aerial Incident NA of 10 August 1999 (Pakistan v. India)

1. Application for Revision of the Judgment of 11 September in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua Intervening) (El Salvador v. Honduras)

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 841

NA

NA

Max SØrensen (Denmark)

Michel Stassinopoulos (Greece)

NA

NA

NA

NA

Krzysztof Skubiszewski (Poland)

Joint Declaration

NA

Declaration

Willem Riphagen NA (The Netherlands)

Judge

Table (cont.)

NA

NA

NA

NA

NA

NA

NA

NA

1. Aegean Sea Continental Shelf.IMP 2. Aegean Sea Continental Shelf.J

1. North Sea Continental Shelf (FR Germany/ Denmark; FR Germany/NL)

1. East Timor 2. GabcikovoNagymaros Project.J

1. Barcelona Traction (new application).M

NA

NA

NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

842 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

NA

Serge Sur (France)

Hubert Thierry (France)

Francisco Urrutia Holguin (Colombia)

Judge

Table (cont.)

Declaration

NA

NA

NA

Joint Declaration

NA

NA

1. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).PO

NA

NA

NA

NA

NA

1. Arbitral Award NA made by the King of Spain of 1906 2. Maritime Delimitation between Nicaragua and Honduras in the Carribean Sea.

1. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal).IMP 2. Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal). Judgment

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 843

NA

NA

Nicolas Valticos (Greece)

Raúl Emilio Vinuesa (Argentina)

Judge

Table (cont.)

Declaration

NA

NA

Joint Declaration

NA

NA

1. Continental NA Shelf (Libya/ Malta).M 2. Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras).M 3. Maritime Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction (Part I) 1. Pulp Mills on the River Uruguay (Argentina v. Uruguay).PO 2. Pulp Mills on the River Uruguay (Argentina v. Uruguay).M

1. Maritime NA Delimitation and Territorial Questions between Qatar and Bahrain. Jurisdiction(Part II)

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

844 World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis

NA

NA

1. Arrest Warrant of 11 April 2000.IMP

J.T. van Wyk (South Africa)

Christine van den Wyngaert (Belgium)

Declaration

Budislav Vukas (Croatia)

Judge

Table (cont.)

NA

NA

NA

Joint Declaration

1. Arrest Warrant of 11 April 2000 (Congo v. Belgium)

1. South-West Africa.M NA

NA

1. Application of NA The Convention on The Prevention and Punishment of The Crime of Genocide (Croatia v. Serbia. Serbia).PO

NA

1. South-West Africa. PO

NA

NA

NA

NA

Individual Joint Opinion Dissenting Opinion Joint Dissenting (Separate) Opinion Opinion

World Court Jurisprudence and Reference Guide Edition II: Facts and Figures Analysis 845

Section IV: Case-Law Digest

Part I

Substantive Law Chapter I ........................................................................................................................ Sources and Rules of International Law ............................................................. Sub-Chapter I Custom and Customary Law ................................................ Principle of Prevention ......................................................................................... Section I Principle of the non-use of force ..................................................... Non-Interference ............................................................................................... Right of Self-Defense ........................................................................................ Conduct ................................................................................................................ Use of force ......................................................................................................... Section II Principles of diplomatic and consular law ................................. Section III Principles of Humanitarian Law .................................................. Prevention of Genocide .................................................................................. Commission of Genocide ............................................................................... Mens Rea .............................................................................................................. Specificity of Intent .......................................................................................... Ethnic Cleansing ............................................................................................... Protected Groups .............................................................................................. Characterisation of Genocide ....................................................................... State Responsibility .......................................................................................... Section IV Principles of Human Rights Law .................................................. Sub-Chapter II General Principles of Law ................................................... Jus Cogens ............................................................................................................ Good Faith .......................................................................................................... Sub-Chapter III Treaties .....................................................................................  General .................................................................................................................  Terminology ........................................................................................................  Conclusion ...........................................................................................................  Signature ..............................................................................................................  Effects ....................................................................................................................  Clauses ..................................................................................................................  Reservations ........................................................................................................  Performance ........................................................................................................  Interpretation .....................................................................................................

855 855 855 855 857 858 859 865 867 869 876 878 881 889 890 890 891 894 895 899 902 903 905 906 906 908 914 914 916 916 918 921 921

850

Case-Law Digest

Rule of Effectiveness ........................................................................................  Grammatical Principle ...............................................................................  Natural and Ordinary Meaning of the Words Employed ................ Context ................................................................................................................. Historical Context ............................................................................................. Object and Purpose ..........................................................................................  Intention of the Parties ..............................................................................  Preparatory Works ....................................................................................... Evolutionary Interpretation ................................................................................ Restrictive Interpretation ..................................................................................... Authentic Interpretation ...................................................................................... Subsequent Practice of the Parties ................................................................... Validity ....................................................................................................................... Extinction and Suspension ..................................................................................  Relationship between Treaty and Domestic Law .................................... Others .........................................................................................................................

923 926 928 929 931 933 936 938 938 940 941 942 942 943 943 944

Chapter II The International Society .............................................................. General ............................................................................................................................ Sub-Chapter I States ............................................................................................. Section I: Territorial Sovereignty ....................................................................... Boundary ............................................................................................................. Delimitation ........................................................................................................ Concept ................................................................................................................ Public Domain (Waters) ................................................................................. Internal Waters .................................................................................................. Territorial Sea ..................................................................................................... Contiguous Zone ............................................................................................... High Seas ............................................................................................................. Fishing .................................................................................................................. Continental Shelf .............................................................................................. Exclusive Economic Zones ............................................................................. Delimitation of Territorial Sea ...................................................................... Section II International Relations of the States ............................................ Sub-Chapter II Entities other than States .................................................... Sub-Chapter III International Organisations .............................................. Chapter III The Violation of International Law .......................................... Sub-Chapter I International Responsibility ...................................................

953 953 955 000 000 962 964 000 000 000 000 000 000 989 995 998 000 1006 1007 1007 1007



Case-Law Digest

851

Part II

Law of Procedure Chapter I The Peaceful Settlement of International Disputes ............... Sub-Chapter I The International Dispute .................................................... Sub-Chapter II Diplomatic Means of Settlement of Dispute ................ Sub-Chapter III Judicial Settlement, the International Court of Justice ................................................................................................................... Judicial Task ....................................................................................................... Preliminary Objections ................................................................................... Jurisdiction .......................................................................................................... Provisional Measures ....................................................................................... Interim Protection Measures ......................................................................... Counter-Claim ................................................................................................... Admissibility ....................................................................................................... Evidence ............................................................................................................... Others ................................................................................................................... Forum Proragatum ............................................................................................ General .................................................................................................................  Discontinuance .............................................................................................  Removal of the cast from the List .......................................................... Parties other than States ................................................................................. Revision or Interpretation of the Judgment .............................................  Request for Interpretation ........................................................................ Res Judicata ......................................................................................................... Sub-Chapter IV Advisory Proceedings ........................................................... General ................................................................................................................. Jurisdiction .......................................................................................................... Function of the Court ...................................................................................... Discretion ............................................................................................................ Advisory Procedures ........................................................................................ Concurrent Procedures ................................................................................... Competence of Organs ....................................................................................

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Case-Law Digest Part I Substantive Law

Chapter I Sources and Rules of International Law Sub-Chapter I Custom and Customary Law Principle of Prevention – Customary Rule “The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this obligation “is now part of the corpus of international law relating to the environment” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 55, para. 98. Previous: Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29.

Principle of Prevention – Customary Rule – Environmental Responsibility “The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory. It is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22). A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State. This Court has established that this ­obligation

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“is now part of the corpus of international law relating to the environment” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 55, para. 98. Previous: Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 242, para. 29.

Sources and Rules of International Law – Custom and Customary Law – Concepts and Principles of diplomatic and consular law “Article 36, paragraph 1, establishes an interrelated regime designed to facilitate the implementation of the system of consular protection. It begins with the basic principle governing consular protection: the right of communication and access (Art. 36, para. 1 (a)). This clause is followed by the provision which spells out the modalities of consular notification (Art. 36, para. 1 (b)). Finally Article 36, paragraph 1 (c), sets out the measures consular officers may take in rendering consular assistance to their nationals in the custody of the receiving State. It follows that when the sending State is unaware of the detention of its nationals due to the failure of the receiving State to provide the requisite consular notification without delay, which was true in the present case during the period between 1982 and 1992, the sending State has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1. It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 492, para. 74.

Sources and Rules of International Law – Custom and Customary Law – Concepts and Principles of diplomatic and consular law “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which



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creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

Section I Principle of the non-use of force Illegality of territorial acquisition resulting from the threat or use of force – Customary international law “As the Court stated in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the principles as to the use of force incorporated in the Charter reflect customary international law (see I.C.J. Reports 1986, pp. 98–101, paras. 187–190); the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 171, para. 88. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, pp. 98–101, paras. 187–190.

Article 51 of the UN Charter – Inherent right of self-defense in the case of armed attack “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 194, para. 139.

Use of force – Necessity – Customary international law “As the Court observed in the case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “the state of necessity is a ground recognized by customary international law” that “can only be accepted on an exceptional basis”; it

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“can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met” (I.C.J. Reports 1997, p. 40, para. 51)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 195, para. 140. Previous: Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 40, para. 51.

Non-interference – Customary international law “Under the Declaration on Friendly Relations, “every State has the duty to refrain from . . . acquiescing in organized activities within its territory directed towards the commission of such acts” (e.g., terrorist acts, acts of internal strife) and also “no State shall . . . tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State . . .”. As stated earlier, these provisions are declaratory of customary international law (see paragraph 162 above)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 268, para. 300.

Waiver or renunciation of claims or rights must either be express or unequivocally implied from the party’s conduct “The Court observes that waivers or renunciations of claims or rights must either be express or unequivocally implied from the conduct of the State alleged to have waived or renounced its right. In the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), the Court rejected a similar argument of waiver put forth by Australia, which argued that Nauru had renounced certain of its claims; noting the absence of any express waiver, the Court furthermore considered that a waiver of those claims could not be implied on the basis of the conduct of Nauru (Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 247–250, paras. 12–21)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 266, para. 293. Previous: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 247–250, paras. 12–21.



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No effect of political climate on legal rights of parties “A period of good or friendly relations between two States should not, without more, be deemed to prevent one of the States from raising a pre-existing claim against the other, either when relations between the two States have again deteriorated or even while the good relations continue. The political climate between States does not alter their legal rights”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 266, para. 294.

Armed attack already occurred and lawfulness of a response to the imminent threat – no view of the Court “As was the case also in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, “reliance is placed by the Parties only on the right of self-defence in the case of an armed attack which has already occurred, and the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised” (I.C.J. Reports 1986, p. 103, para. 194). The Court there found that “[a]ccordingly [it] expresses no view on that issue”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 223, para. 143. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, I.C.J. Reports 1986, p. 103, para. 194.

Right of self-defence – Court’s approach when specific pre-conditions are absent “The Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces. Equally, since the preconditions for the exercise of self-defence do not exist in the circumstances of the present case, the Court has no need to enquire whether such an entitlement to self-defence was in fact exercised in circumstances of necessity and in a manner that was proportionate. The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometres from Uganda’s border

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would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 223, para. 147.

Right of self-defence – Court’s approach when specific pre-conditions are absent – Proportionality “The Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces. Equally, since the preconditions for the exercise of self-defence do not exist in the circumstances of the present case, the Court has no need to enquire whether such an entitlement to self-defence was in fact exercised in circumstances of necessity and in a manner that was proportionate. The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometres from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 223, para. 147.

Self-defence – Criteria strict and objective – No room for any measure of discretion “The Court does not however have to decide whether the United States interpretation of Article XX, paragraph 1 (d), on this point is correct, since the requirement of international law that measures taken avowedly in self-defence must have been necessary for that purpose is strict and objective, leaving no room for any “measure of discretion”. The Court will therefore turn to the criteria of necessity and proportionality in the context of international law on self-defence”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 196, para. 73.



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Self-defence – Criteria of necessity and proportionality “As the Court observed in its decision of 1986 the criteria of necessity and proportionality must be observed if a measure is to be qualified as self-defence (see ibid., p. 103, para. 194, and paragraph 74 below)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 183, para. 43.

Self-defence – Criteria of necessity and proportionality “In its decision in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court endorsed the shared view of the parties to that case that in customary law “whether the response to the [armed] attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence” (I.C.J. Reports 1986, p. 103, para. 194)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 196, para. 74. Previous: Case concerning Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, p. 103, para.194.

Self-defence – Condition of necessity and proportionality “The conditions for the exercise of the right of self-defence are well settled: as the Court observed in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, “The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law” (I.C.J. Reports 1996 (1), p. 245, para. 41); and in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court referred to a specific rule “whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it” as “a rule well established in customary international law” (I.C.J. Reports, 1986, p. 94, para. 176)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 198, para. 76. Previous: Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (1), p. 245, para. 41. Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports, 1986, p. 94, para. 176.

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Sources and Rules of International Law Self-defence – Nature of the target of the force

“One aspect of these criteria is the nature of the target of the force used avowedly in self-defence. In its communications to the Security Council, in particular in that of 19 October 1987 (paragraph 46 above), the United States indicated the grounds on which it regarded the Iranian platforms as legitimate targets for an armed action in self-defence”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 196, para. 74.

Attribution to state organs “The Court would comment, however, that, even if the evidence does not suggest that the MLC’s conduct is attributable to Uganda, the training and military support given by Uganda to the ALC, the military wing of the MLC, violates certain obligations of international law”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 226, para. 161.

Provisions declaratory of customary international law “The Declaration further provides that “no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State” (ibid.) . . . These provisions are declaratory of customary international law”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 226, para. 162.

Violation of principles of non-use of force and non-intervention “The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 227, para. 163.



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Violation of principles of non-use of force and non-intervention “The Court considers that the obligations arising under the principles of non-use of force and non-intervention were violated by Uganda even if the objectives of Uganda were not to overthrow President Kabila, and were directed to securing towns and airports for reason of its perceived security needs, and in support of the parallel activity of those engaged in civil war”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 227, para. 164.

Meaning of principle of non-intervention “In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State” (I.C.J. Reports 1986, p. 108, para. 206)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 227, para. 163. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, I.C.J. Reports 1986, p. 108, para. 206.

Connection between the breach of principle of non-intervention and principle of non-use of force in international relations “The Court notes that in the present case it has been presented with probative evidence as to military intervention. The Court further affirms that acts which breach the principle of non-intervention “will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations” (ibid., pp. 109–110, para. 209)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 227, para. 164.

Occupying Power’s engagement of responsibility “The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant time, finds that Uganda’s responsibility is engaged both for any acts of

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its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 231, para. 179.

Indispensable third party principle “Concerning the events in Kisangani, Uganda maintains that Rwanda’s legal interests form “the very subject-matter” of the decision which the DRC is seeking, and that consequently a decision of the Court covering these events would infringe the “indispensable third party” principle referred to in the cases concerning Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America) ( Judgment, I.C.J. Reports 1954, p. 19, and East Timor (Portugal v. Australia) ( Judgment, I.C.J. Reports 1995, p. 90). The Court considers that this jurisprudence is applicable in the current proceedings. In the present case, the interests of Rwanda clearly do not constitute “the very subject-matter” of the decision to be rendered by the Court on the DRC’s claims against Uganda, nor is the determination of Rwanda’s responsibility a prerequisite for such a decision. The fact that some alleged violations of international human rights law and international humanitarian law by Uganda occurred in the course of hostilities between Uganda and Rwanda does not impinge on this finding. Thus it is not necessary for Rwanda to be a party to this case for the Court to be able to determine whether Uganda’s conduct was a violation of these rules of international law”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 236, para. 198. Previous: Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America) ( Judgment, I.C.J. Reports 1954, p. 19). East Timor (Portugal v. Australia) ( Judgment, I.C.J. Reports 1995, p. 90).

Indiscriminate shelling qualification as a grave violation of humanitarian law “In this context, the Court notes that indiscriminate shelling is in itself a grave violation of humanitarian law”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 240, para. 208.



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Conduct of state organ – Attributable to a state “The conduct of the UPDF as a whole is clearly attributable to Uganda, being the conduct of a State organ. According to a well-established rule of international law, which is of customary character, “the conduct of any organ of a State must be regarded as an act of that State” (Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), p. 87, para. 62)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 242, para. 213. Previous: Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), p. 87, para. 62.

Conduct of individual soldiers and officers and attribution to the conduct of a state “The conduct of individual soldiers and officers of the UPDF is to be considered as the conduct of a State organ. In the Court’s view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda. The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 242, para. 213.

Conduct of all acts by persons forming part of its armed forces “According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 242, para. 213.

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Applicability of international human rights instruments – occupied territories “The Court further concluded that international human rights instruments are applicable “in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”, particularly in occupied territories (ibid., pp. 178–181, paras. 107–113)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 243, para. 216.

Armed conflict – Obligation on parties to engage in peace process and respect for human rights “The Court is painfully aware that many atrocities have been committed in the course of the conflict. It is incumbent on all those involved in the conflict to support the peace process in the DRC and other peace processes in the Great Lakes area, in order to ensure respect for human rights in the region”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 245, para. 221.

Interpretation of a statement by a Head of State – Examination of content and surrounding circumstances In order to determine the legal effect of that statement, the Court must, however, examine its actual content as well as the circumstances in which it was made (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 269–270, para. 51; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 573–574, paras. 39–40). Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 28, para. 49. Previous: Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 269–270, para. 51. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 573–574, paras. 39–40.

Effect of statement of Minister of Justice – Scope of creation of legal obligations On the first point, the Court recalls that a statement of this kind can create legal obligations only if it is made in clear and specific terms (see Nuclear Tests (Australia v. France) (New Zealand v. France), Reports 1974, p. 267, para. 43; p. 269,



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para. 51; p. 472, para. 46; 474, para. 53). In this regard the Court observes that in her statement the Minister of Justice of Rwanda indicated that “past reservations not yet withdrawn [would] shortly be withdrawn”, without referring explicitly to the reservation made by Rwanda to Article IX of the Genocide Convention”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 28, para. 50. Previous: Nuclear Tests (Australia v. France) (New Zealand v. France), Reports 1974, p. 267, para. 43; p. 269, para.51; p. 472, para.46; 474, para. 53.

Use of force – Imputability of attacks to a party – Armed attacks within the meaning of Article 51 of the Charter and as understood in customary law on the use of force “Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 161, p. 186, para. 51.

Use of force – Process of proving evidence and criteria “Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 186, para. 51.

Use of force – Necessity to distinguish between most grave form from other less grave forms “As the Court observed in the case concerning Military and Paramilitary Activities in and against Nicaragua, it is necessary to distinguish “the most grave forms of

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the use of force (those constituting an armed attack) from other less grave forms” (I.C.J. Reports 1986, p. 101, para. 191), since “In the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack” (ibid., p. 103, para. 195)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 187, para. 51. Previous: Case concerning Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, p. 101, para. 191.

Use of force – Victim of armed attack – Burden of proof on claimant state “For present purposes, the Court has simply to determine whether the United States has demonstrated that it was the victim of an “armed attack” by Iran such as to justify it using armed force in self-defence; and the burden of proof of the facts showing the existence of such an attack rests on the United States. The Court does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the end of the day the evidence available is insufficient to establish that the missile was fired by Iran, then the necessary burden of proof has not been discharged by the United States”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 1893, para. 57.

Use of force – Victim of armed attack – Burden of proof on claimant state – Concrete example For present purposes, the Court has simply to determine whether the United States has demonstrated that it was the victim of an “armed attack” by Iran such as to justify it using armed force in self-defence; and the burden of proof of the facts showing the existence of such an attack rests on the United States. The Court does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq; if at the end of the day the evidence available is insufficient to establish that the missile was fired by Iran, then the necessary burden of proof has not been discharged by the United States”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 189, para. 57.



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Inherent right of self-defence – Limitation of specific example to be proven as determining evidence “The Court does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the “inherent right of self-defence”; but in view of all the circumstances, including the inconclusiveness of the evidence of Iran’s responsibility for the mining of the USS Samuel B. Roberts, the Court is unable to hold that the attacks on the Salman and Nasr platforms have been shown to have been justifiably made in response to an “armed attack” on the United States by Iran, in the form of the mining of the USS Samuel B. Roberts”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 195, para. 72.

Section II Principles of diplomatic and consular law Principles of diplomatic and consular law – Vienna Convention on Consular Relations – Diplomatic Privileges and Immunities-Immunity from civil and criminal jurisdiction to high-ranking officials “The Court has already recalled in the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) case “that in international law it is firmly established that . . . certain holders of high-ranking office in a State, such as the Head of State . . . enjoy immunities from jurisdiction in other States, both civil and criminal” ( Judgment, I.C.J. Reports 2002, pp. 20–21, para. 51). A Head of State enjoys in particular “full immunity from criminal jurisdiction and inviolability” which protects him or her “against any act of authority of another State which would hinder him or her in the performance of his or her duties” (ibid., p. 22, para. 54). Thus the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act of authority”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 236, para. 170. Previous: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium, Judgment, I.C.J. Reports 2002, pp. 20–21, para. 51.

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Principles of diplomatic and consular law – Diplomatic privileges and immunities – Inviolability of members of a diplomatic mission and premises “In the case concerning United States Diplomatic and Consular Staff in Tehran, the Court emphasized that “[e]ven in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, . . . must be respected by the receiving State” ( Judgment, I.C.J. Reports 1980, p. 40, para. 86)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 274, para. 323.

Principles of diplomatic and consular law – Diplomatic privileges and immunities – Courtesy due to a foreign Head of State “The Court considers that by inviting a Head of State to give evidence simply through sending him a facsimile and by setting him an extremely short deadline without consultation to appear at her office, Judge Clément failed to act in accordance with the courtesies due to a foreign Head of State”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 237, para. 172.

Principles of diplomatic and consular law – Vienna Convention on Diplomatic Relations – Application to Heads of State “The Court recalls that the rule of customary international law reflected in Article 29 of the Vienna Convention on Diplomatic Relations, while addressed to diplomatic agents, is necessarily applicable to Heads of State. This provision reads as follows: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” . . . This provision translates into positive obligations for the receiving State as regards the actions of its own authorities, and into obligations of prevention as regards possible acts by individuals. In particular, it imposes on receiving States the obligation to protect the honour and dignity of Heads of State, in connection with their inviolability”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 238, para. 174.



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Principles of diplomatic and consular law – Vienna Convention on Diplomatic Relations – Breach of obligations under a treaty and violation of international obligation of a state “Djibouti has claimed that the communication to Agence France-Presse, in breach of the confidentiality of the investigation, of information concerning the witness summons addressed to its Head of State, is to be regarded as an attack on his honour or dignity. The Court observes that if it had been shown by Djibouti that this confidential information had been passed from the offices of the French judiciary to the media, such an act could have constituted, in the context of an official visit by the Head of State of Djibouti to France, not only a violation of French law, but also a violation by France of its international obligations”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 238, para. 175.

Principles of diplomatic and consular law – Vienna Convention on Diplomatic Relations – Non-applicability of personnel falling under the Convention on Special Missions of 1969 “The Court notes first that there are no grounds in international law upon which it could be said that the officials concerned were entitled to personal immunities, not being diplomats within the meaning of the Vienna Convention on Diplomatic Relations of 1961, and the Convention on Special Missions of 1969 not being applicable in this case”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 243, para. 194.

Principles of diplomatic and consular law – Vienna Convention on Privileges and Immunities and Vienna Convention on Diplomatic Relations – Procedure to claim immunity “The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned. This would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further, the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 244, para. 196.

872

Sources and Rules of International Law Vienna Convention on the Law of Treaties – Position of Head of State, Head of Government and Minister of Foreign Affairs

In this connection, the Court observes that, in accordance with its consistent jurisprudence (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 269–270, paras. 49–51; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622, para. 44; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, pp. 21–22, para. 53; see also Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 71), it is a well-established rule of international law that the Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of the said State, of unilateral acts having the force of international commitments. The Court moreover recalls that, in the matter of the conclusion of treaties, this rule of customary law finds expression in Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties, which provides that “[i]n virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 46.

Vienna Convention on the Law of Treaties – Modern international relations and state practice – Position of holders of technical ministerial portfolios “The Court notes, however, that with increasing frequency in modern international relations other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even of certain officials”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 47.



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Principles of diplomatic and consular law – Vienna Convention on the Law of Treaties – Position and effect of acts of Minister of Justice for a state “It is the Court’s view that the possibility cannot be ruled out in principle that a Minister of Justice may, under certain circumstances, bind the State he or she represents by his or her statements. The Court cannot therefore accept Rwanda’s argument that Ms Mukabagwiza could not, by her statement, bind the Rwandan State internationally, merely because of the nature of the functions that she exercised”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 46.

Treaty – Vienna Convention on the Law of Treaties – Powers of Heads of State for conclusion of a treaty “The Court cannot accept Nigeria’s argument that Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties is solely concerned with the way in which a person’s function as a State’s representative is established, but does not deal with the extent of that person’s powers when exercising that representative function. The Court notes that the commentary of the International Law Commission on Article 7, paragraph 2, expressly states that “Heads of State . . . are considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty” (ILC Commentary, Art. 6 (of what was then the draft Convention), para. 4, Yearbook of the International Law Commission, 1966, Vol. II, p. 193)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 430, para. 265.

Treaty – Statement of Head of State – Commitment of obligation – Effect on other party “In this case the Head of State of Nigeria had in August 1974 stated in his letter to the Head of State of Cameroon that the views of the Joint Commission “must be subject to the agreement of the two Governments”. However, in the following paragraph of that same letter, he further indicated: “It has always been my belief that we can, both, together re-examine the situation and reach an appropriate and acceptable decision on the matter.” Contrary to Nigeria’s contention, the Court considers that these two statements, read together, cannot be regarded as a specific warning to Cameroon that the Nigerian Government would not be bound by any commitment entered into by the Head of State”.

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Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 430, para. 266. .

Sources and Rules of International Law – Treaties – Elements and Time-Factor Determining the Fulfilment of the Procedural Obligations under Consular Laws “The Court notes that Article 36, paragraph 1 (b), spells out the obligations the receiving State has towards the detained person and the sending State. It provides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the individual’s detention “without delay”. It provides further that any communication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State “without delay”. Significantly, this subparagraph ends with the following language: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph” (emphasis added). Moreover, under Article 36, paragraph 1 (c), the sending State’s right to provide consular assistance to the detained person may not be exercised “if he expressly opposes such action”. The clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand (see Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8; Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51). Based on the text of these provisions, the Court concludes that Article 36, paragraph I, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77. Previous: Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J. Series B, No.7, p. 20. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8. Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51.

Treaties – Jurisdiction of the state based on nationality – Diplomatic protection – General Observations – Means of Exercise “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond



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the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

Treaties – Jurisdiction of the state based on nationality – Diplomatic protection – General Observations “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

Treaties – Jurisdiction of the state based on nationality – Diplomatic protection – Entitlement of the right of protection “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

876

Sources and Rules of International Law Section III Principles of Humanitarian Law International humanitarian law instruments – Obligations of occupying power with regards to transfer of populations

“Neither Article 46 of the Hague Regulations of 1907 nor Article 47 of the Fourth Geneva Convention contain any qualifying provision of this type. With regard to forcible transfers of population and deportations, which are prohibited under Article 49, paragraph L of the Convention, paragraph 2 of that Article provides for an exception in those cases in which “the security of the population or imperative military reasons so demand”. This exception however does not apply to paragraph 6 of that Article, which prohibits the occupying Power from deporting or transferring parts of its own civilian population into the territories it occupies. As to Article 53 concerning the destruction of personal property, it provides for an exception “where such destruction is rendered absolutely necessary by military operations”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 192, para. 135.

Hague Regulations – Part of customary law “The Court considers that the provisions of the Hague Regulations have become part of customary law, as is in fact recognized by all the participants in the proceedings before the Court”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 172, para. 89.

Application of 4th Geneva Convention – Fulfilment of two essential conditions “The Court notes that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. If those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, para. 95.



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Applicability of the fourth Geneva Convention – In case when occupation did not meet armed resistance “The object of the second paragraph of Article 2 is not to restrict the scope of application of the Convention, as defined by the first paragraph, by excluding therefrom territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 175, para. 95.

Cases of occupation without combat or resistance “That interpretation is confirmed by the Convention’s travaux preparatoires. The Conference of Government Experts convened by the International Committee of the Red Cross (hereinafter, “ICRC”) in the aftermath of the Second World War for the purpose of preparing the new Geneva Conventions recommended that these conventions be applicable to any armed conflict “whether [it] is or is not recognized as a state of war by the parties” and “in cases of occupation of territories in the absence of any state of war” (Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, 14–26 April 1947, p. 8). The drafters of the second paragraph of Article 2 thus had no intention, when they inserted that paragraph into the Convention, of restricting the latter’s scope of application. They were merely seeking to provide for cases of occupation without combat such as the occupation of Bohemia and Moravia by Germany in 1939”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p.175, para. 95.

Scope of application of the fourth Geneva Convention “In view of the foregoing, the Court considers that the Fourth Geneva Convention is applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 177, para. 101.

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Sources and Rules of International Law Prevention of genocide – Normative and compelling obligation

“However, it is not the case that the obligation to prevent has no separate legal existence of its own; that it is, as it were, absorbed by the obligation to punish, which is therefore the only duty the performance of which may be subject to review by the Court. The obligation on each contracting State to prevent genocide is both normative and compelling. It is not merged in the duty to punish, nor can it be regarded as simply a component of that duty. It has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate. Even if and when these organs have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 219, para. 427.

Prevention of genocide – Normative and compelling obligation – Treaty law “First, the Genocide Convention is not the only international instrument providing for an obligation on the States parties to it to take certain steps to prevent the acts it seeks to prohibit. Many other instruments include a similar obligation, in various forms: see, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (Art. 2); the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973 (Art. 4); the Convention on the Safety of United Nations and Associated Personnel of 9 December 1994 (Art. 11); the International Convention on the Suppression of Terrorist Bombings of 15 December 1997 (Art. 15). The content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 220, para. 429.

General obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law “The decision of the Court does not, in this case, purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other ­binding



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legal norm, includes an obligation for States to prevent certain acts. Still less does the decision of the Court purport to find whether, apart from the texts applicable to specific fields, there is a general obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 220, para. 429.

Nature of obligation – Distinction between conduct and result “Secondly, it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430.

Prevention of genocide – Due diligence of a State “A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430.

State responsibility – Breach of obligation to prevent genocide “Thirdly, a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 431.

880

Sources and Rules of International Law State responsibility – Violation of the obligation to prevent genocide

“This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 222, para. 431.

Difference between violation of obligation to prevent genocide and responsibility for complicity in genocide “Fourth and finally, the Court believes it especially important to lay stress on the differences between the requirements to be met before a State can be held to have violated the obligation to prevent genocide – within the meaning of Article I of the Convention – and those to be satisfied in order for a State to be held responsible for “complicity in genocide” – within the meaning of Article III, paragraph (e) – as previously discussed. There are two main differences; they are so significant as to make it impossible to treat the two types of violation in the same way”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 222, para. 432.

Constitutive elements of complicity in genocide and preventive obligations “In the first place, as noted above, complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being



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c­ ommitted. In other words, while complicity results from commission, violation of the obligation to prevent results from omission; this is merely the reflection of the notion that the ban on genocide and the other acts listed in Article III, including complicity, places States under a negative obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 222, para. 432.

Commission of genocide – State responsibility – Distinction between complicity in genocide and aid or assistance of a State in the commission of a wrongful act “Although this provision, because it concerns a situation characterized by a relationship between two States, is not directly relevant to the present case, it nevertheless merits consideration. The Court sees no reason to make any distinction of substance between “complicity in genocide”, within the meaning of Article III, paragraph (e), of the Convention, and the “aid or assistance” of a State in the commission of a wrongful act by another State within the meaning of the aforementioned Article 16 – setting aside the hypothesis of the issue of instructions or directions or the exercise of effective control, the effects of which, in the law of international responsibility, extend beyond complicity. In other words, to ascertain whether the Respondent is responsible for “complicity in genocide” within the meaning of Article III, paragraph (e), which is what the Court now has to do, it must examine whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished “aid or assistance” in the commission of the genocide in Srebrenica, in a sense not significantly different from that of those concepts in the general law of international responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 217, para. 420.

Commission of genocide – Link between the specific intent and motive “Before the Court turns to an examination of the facts, one further comment is required. It concerns the link between the specific intent (dolus specialis) which characterizes the crime of genocide and the motives which inspire the actions of an accomplice (meaning a person providing aid or assistance to the direct perpetrators of the crime): the question arises whether complicity presupposes that the accomplice shares the specific intent (dolus specialis) of the principal perpetrator.

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But whatever the reply to this question, there is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to exclude categorization as complicity”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 218, para. 421.

Commission of genocide – Prevention and punishment “It is true that, simply by its wording, Article I of the Convention brings out the close link between prevention and punishment: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” It is also true that one of the most effective ways of preventing criminal acts, in general, is to provide penalties for persons committing such acts, and to impose those penalties effectively on those who commit the acts one is trying to prevent. Lastly, it is true that, although in the subsequent Articles, the Convention includes fairly detailed provisions concerning the duty to punish (Articles III to VII), it reverts to the obligation of prevention, stated as a principle in Article I, only in Article VIII: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 219, para. 426.

Difference between individual as accomplice and complicity of a State in genocide “In other words, an accomplice must have given support in perpetrating the genocide with full knowledge of the facts. By contrast, a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way; for it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 223, para. 432.



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Influence of orders issued by a complicit state on individuals “The Court’s use, in the above passage, of the term “influence” is particularly revealing of the fact that the Order concerned not only the persons or entities whose conduct was attributable to the FRY, but also all those with whom the Respondent maintained close links and on which it could exert a certain influence. Although in principle the two issues are separate, and the second will be examined below, it is not possible, when considering the way the Respondent discharged its obligation of prevention under the Convention, to fail to take account of the obligation incumbent upon it, albeit on a different basis, to implement the provisional measures indicated by the Court”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 224, para. 435.

State responsibility – Commission of genocide – Obligation to cooperate with international courts and tribunal “It is thus to the obligation for States parties to co-operate with the “international penal tribunal” mentioned in the above provision that the Court must now turn its attention. For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory – even if the crime of which they are accused was committed outside it – and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 227, para. 443.

Commission of genocide – Individual criminal responsibility – Attribution – Judicial task “For this purpose, the Court may be required to consider the following three issues in turn. First, it needs to be determined whether the acts of genocide could be attributed to the Respondent under the rules of customary international law of State responsibility; this means ascertaining whether the acts were committed by persons or organs whose conduct is attributable, specifically in the case of the events at Srebrenica, to the Respondent. Second, the Court will need to ascertain whether acts of the kind referred to in Article III of the Convention, other than genocide itself, were committed by persons or organs whose conduct

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is ­attributable to the Respondent under those same rules of State responsibility: that is to say, the acts referred to in Article III, paragraphs (b) to (e), one of these being complicity in genocide. Finally, it will be for the Court to rule on the issue as to whether the Respondent complied with its twofold obligation deriving from Article I of the Convention to prevent and punish genocide . . . These three issues must be addressed in the order set out above, because they are so interrelated that the answer on one point may affect the relevance or significance of the others. Thus, if and to the extent that consideration of the first issue were to lead to the conclusion that some acts of genocide are attributable to the Respondent, it would be unnecessary to determine whether it may also have incurred responsibility under Article III, paragraphs (b) to (e), of the Convention for the same acts. Even though it is theoretically possible for the same acts to result in the attribution to a State of acts of genocide (contemplated by Art. III, para. (a)), conspiracy to commit genocide (Art. III, para. (b)), and direct and public incitement to commit genocide (Art. III, para. (c)), there would be little point, where the requirements for attribution are fulfilled under (a), in making a judicial finding that they are also satisfied under (b) and (c), since responsibility under (a) absorbs that under the other two. The idea of holding the same State responsible by attributing to it acts of “genocide” (Art. III, para. (a)), “attempt to commit genocide” (Art. III, para. (d)), and “complicity in genocide” (Art. III, para. (e)), in relation to the same actions, must be rejected as untenable both logically and legally”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 199, para. 379.

Commission of genocide – Attribution of act to an individual – Obligation of the Court “On the other hand, there is no doubt that a finding by the Court that no acts that constitute genocide, within the meaning of Article II and Article III, paragraph (a), of the Convention, can be attributed to the Respondent will not free the Court from the obligation to determine whether the Respondent’s responsibility may nevertheless have been incurred through the attribution to it of the acts, or some of the acts, referred to in Article III, paragraphs (b) to (e). In particular, it is clear that acts of complicity in genocide can be attributed to a State to which no act of genocide could be attributed under the rules of State responsibility, the content of which will be considered below”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 200, para. 381.



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Commission of genocide – prevention by state and proof of involvement of state in the commission of genocide “Furthermore, the question whether the Respondent has complied with its obligations to prevent and punish genocide arises in different terms, depending on the replies to the two preceding questions. It is only if the Court answers the first two questions in the negative that it will have to consider whether the Respondent fulfilled its obligation of prevention, in relation to the whole accumulation of facts constituting genocide. If a State is held responsible for an act of genocide (because it was committed by a person or organ whose conduct is attributable to the State), or for one of the other acts referred to in Article III of the Convention (for the same reason), then there is no point in asking whether it complied with its obligation of prevention in respect of the same acts, because logic dictates that a State cannot have satisfied an obligation to prevent genocide in which it actively participated. On the other hand, it is self-evident, as the Parties recognize, that if a State is not responsible for any of the acts referred to in Article III, paragraphs (a) to (e), of the Convention, this does not mean that its responsibility cannot be sought for a violation of the obligation to prevent genocide and the other acts referred to in Article III”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 200, para. 382.

Commission of genocide – complicity v punishment to perpetrator by the state – international responsibility “Finally, it should be made clear that, while, as noted above, a State’s responsibility deriving from any of those acts renders moot the question whether it satisfied its obligation of prevention in respect of the same conduct, it does not necessarily render superfluous the question whether the State complied with its obligation to punish the perpetrators of the acts in question. It is perfectly possible for a State to incur responsibility at once for an act of genocide (or complicity in genocide, incitement to commit genocide, or any of the other acts enumerated in Article III) committed by a person or organ whose conduct is attributable to it, and for the breach by the State of its obligation to punish the perpetrator of the act: these are two distinct internationally wrongful acts attributable to the State, and both can be asserted against it as bases for its international responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 201, para. 383.

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Sources and Rules of International Law Commission of genocide – Genocide Convention – deliberate infliction on group(s)

“Article II (c) of the Genocide Convention concerns the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 176, para. 320.

Commission of genocide – Deportation and expulsion of members of the protected groups “The Court considers that there is persuasive and conclusive evidence that deportations and expulsions of members of the protected group occurred in Bosnia and Herzegovina. With regard to the Respondent’s argument that in time of war such deportations or expulsions may be justified under the Geneva Convention, or may be a normal way of settling a conflict, the Court would observe that no such justification could be accepted in the face of proof of specific intent (dolus specialis). However, even assuming that deportations and expulsions may be categorized as falling within Article II, paragraph (c), of the Genocide Convention, the Court cannot find, on the basis of the evidence presented to it, that it is conclusively established that such deportations and expulsions were accompanied by the intent to destroy the protected group in whole or in part (see paragraph 190 above)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 181, para. 334.

Commission of genocide – Cultural genocide as punishable acts “The Court takes note of the submission of the Applicant that the destruction of such heritage was “an essential part of the policy of ethnic purification” and was “an attempt to wipe out the traces of [the] very existence” of the Bosnian Muslims. However, in the Court’s view, the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group. Although such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group, and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention. In this regard, the Court observes that, during its consideration of the draft text of the Convention, the



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Sixth ­Committee of the General Assembly decided not to include cultural genocide in the list of punishable acts”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 185, para. 344.

Commission of genocide – Dolus specialis – Circumstantial evidence “The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 196, para. 373.

Commission of genocide – Criminal trial procedure “There remains for consideration the sixth stage, that of sentencing judgments given following a guilty plea. The process involves a statement of agreed facts and a sentencing judgment. Notwithstanding the guilty plea the Trial Chamber must be satisfied that there is sufficient factual basis for the crime and the accused’s participation in it. It must also be satisfied that the guilty plea has been made voluntarily, is informed and is not equivocal. Accordingly the agreed statement and the sentencing judgment may when relevant be given a certain weight”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 134, para. 224.

Commission of genocide – State responsibility without conviction of individual for a crime “Any other interpretation could entail that there would be no legal recourse available under the Convention in some readily conceivable circumstances: genocide has allegedly been committed within a State by its leaders but they have not been brought to trial because, for instance, they are still very much in control of the powers of the State including the police, prosecution services and the courts and there is no international penal tribunal able to exercise jurisdiction over the alleged crimes; or the responsible State may have acknowledged the breach. The Court accordingly concludes that State responsibility can arise under the

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Convention for genocide and complicity, without an individual being convicted of the crime or an associated one”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 1197, para. 182.

Prosecution of persons charged with genocide – Prosecution mechanisms “The obligation to prosecute imposed by Article VI is by contrast subject to an express territorial limit. The trial of persons charged with genocide is to be in a competent tribunal of the State in the territory of which the act was committed (cf. paragraph 442 below), or by an international penal tribunal with jurisdiction (paragraphs 443 ff. below)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 120, para. 184.

Terminology – Definition of genocide and constituting elements “The Court notes that genocide as defined in Article II of the Convention comprises “acts” and an “intent”. It is well established that the acts – “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; [and] (e) Forcibly transferring children of the group to another group” themselves include mental elements. “Killing” must be intentional, as must “causing serious bodily or mental harm”. Mental elements are made explicit in paragraphs (c) and (d) of Article II by the words “deliberately” and “intended”, quite apart from the implications of the words “inflicting” and “imposing”; and forcible transfer too requires deliberate intentional acts. The acts, in the words of the ILC, are by their very nature conscious, intentional or volitional acts (Commentary on Article 17 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, ILC Report 1996, Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 44, para. 5)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 121, para. 186.



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Commission of genocide – Discriminatory intent “It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy the protected group”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 121, para. 187.

Genocide and other related criminal acts “The specificity of the intent and its particular requirements are highlighted when genocide is placed in the context of other related criminal acts, notably crimes against humanity and persecution, as the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter “ICTY” or “the Tribunal”) did in the Kupreškic´ et al. case . . .”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 121, para. 188.

Commission of genocide – Mens Rea “[T]he mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.” (IT-95-16-T, Judgment, 14 January 2000, para. 636.) 189. The specific intent is also to be distinguished from other reasons

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or motives the perpetrator may have. Great care must be taken in finding in the facts a sufficiently clear manifestation of that intent”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 122, para. 188.

Identification of intent “The specific intent is also to be distinguished from other reasons or motives the perpetrator may have. Great care must be taken in finding in the facts a sufficiently clear manifestation of that intent”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 122, para. 189.

Commission of genocide – Specificity of intent “It does not appear in the Genocide Convention; indeed, a proposal during the drafting of the Convention to include in the definition “measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment” was not accepted (A/C.6/ 234). It can only be a form of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or dis-placement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 122, para. 190.

Commission of genocide – Ethnic cleansing “This is not to say that acts described as “ethnic cleansing” may never constitute genocide, if they are such as to be characterized as, for example, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent



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(dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 123, para. 190.

Link between ethnic cleansing and genocide “In other words, whether a particular operation described as “ethnic cleansing” amounts to genocide depends on the presence or absence of acts listed in Article II of the Genocide Convention, and of the intent to destroy the group as such. In fact, in the context of the Convention, the term “ethnic cleansing” has no legal significance of its own. That said, it is clear that acts of “ethnic cleansing” may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (dolus specialis) inspiring those acts”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 123, para. 190.

Commission of genocide – Evidentiary value of groups against which genocide considered to have been committed “When examining the facts brought before the Court in support of the accusations of the commission of acts of genocide, it is necessary to have in mind the identity of the group against which genocide may be considered to have been committed”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 124, para. 191.

Commission of genocide – Protected groups “The Court recalls first that the essence of the intent is to destroy the protected group, in whole or in part, as such. It is a group which must have particular positive characteristics – national, ethnical, racial or religious – and not the lack of them. The intent must also relate to the group “as such”. That means that the crime requires an intent to destroy a collection of people who have a particular group identity. It is a matter of who those people are, not who they are not. The etymology of the word – killing a group – also indicates a positive definition; and Raphael Lemkin has explained that he created the word from the Greek genos,

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meaning race or tribe, and the termination “-cide”, from the Latin caedere, to kill (Axis Rule in Occupied Europe (1944), p. 79)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 124, para. 193.

Determination of part of the group for intentional destruction purposes “In terms of that question of law, the Court refers to three matters relevant to the determination of “part” of the “group” for the purposes of Article II. In the first place, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole. That requirement of substantiality is supported by consistent rulings of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and by the Commentary of the ILC to its Articles in the draft Code of Crimes against the Peace and Security of Mankind (e.g. Krstic´, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8–11 and the cases of Kayishema, Byilishema, and Semanza there referred to; and Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 126, para. 198.

Commission of genocide – Destruction of whole group within a geographical limited area “Second, the Court observes that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area. In the words of the ILC, “it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe” (ibid.)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 126, para. 199.

Commission of genocide – Destruction of particular group – Qualitative v. quantitative criterion “A third suggested criterion is qualitative rather than quantitative. The Appeals Chamber in the Krstic´ case put the matter in these carefully measured terms:



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“The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Statute which exactly reproduces Article II of the Convention].” (IT-98-33-A, Judgment, 19 April 2004, para. 12; footnote omitted.)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 127, para. 200.

Commission of genocide – Destruction of particular group – Qualitative v. quantitative criterion – Limitation of qualitative criterion “Establishing the “group” requirement will not always depend on the substantiality requirement alone although it is an essential starting point. It follows in the Court’s opinion that the qualitative approach cannot stand alone”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 127, para. 200.

State responsibility – Acts of organ of the state, a person or group attributable to the state “Accordingly, having considered the various arguments, the Court affirms that the Contracting Parties are bound by the obligation under the Convention not to commit, through their organs or persons or groups whose conduct is attributable to them, genocide and the other acts enumerated in Article III. Thus if an organ of the State, or a person or group whose acts are legally attributable to the State, commits any of the acts proscribed by Article III of the Convention, the international responsibility of that State is incurred”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 118, para. 179.

Link between commission of genocide by state and definition of genocide – Evidence – Burden of proof “The Court observes that if a State is to be responsible because it has breached its obligation not to commit genocide, it must be shown that genocide as defined in the Convention has been committed. That will also be the case with conspiracy

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under Article III, paragraph (b), and complicity under Article III, paragraph (e); and, as explained below (paragraph 431) for purposes of the obligation to prevent genocide”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 118, para. 179.

Characterization of genocide “Those characterizations of the prohibition on genocide and the purpose of the Convention are significant for the interpretation of the second proposition stated in Article I – the undertaking by the Contracting Parties to prevent and punish the crime of genocide, and particularly in this context the undertaking to prevent. Several features of that undertaking are significant. The ordinary meaning of the word “undertake” is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties (cf., for example, International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), Art. 2, para. 1; International Covenant on Civil and Political Rights (16 December 1966), Art. 2, para. 1, and 3, for example). It is not merely hortatory or purposive. The undertaking is unqualified (a matter considered later in relation to the scope of the obligation of prevention); and it is not to be read merely as an introduction to later express references to legislation, prosecution and extradition. Those features support the conclusion that Article I, in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles. That conclusion is also supported by the purely humanitarian and civilizing purpose of the Convention”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 111, para. 162.

Characterization of “genocide” and duality of responsibility “The conclusion is confirmed by two aspects of the preparatory work of the Convention and the circumstances of its conclusion as referred to in Article 32 of the Vienna Convention. In 1947 the United Nations General Assembly, in requesting the Economic and Social Council to submit a report and a draft convention on genocide to the Third Session of the Assembly, declared “that genocide is an international crime entailing national and international responsibility on the part of individuals and States” (A/RES/180 (II)). That duality of responsibilities is also to be seen in two other associated resolutions adopted on the same day, both directed to the newly established International Law Commission (hereinafter “the



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ILC”): the first on the formulation of the Nuremberg principles, concerned with the rights (Principle V) and duties of individuals, and the second on the draft declaration on the rights and duties of States (A/RES/177 and A/RES/178 (II)). The duality of responsibilities is further considered later in this Judgment (paragraphs 173–174)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 111, para. 163.

Prevention of genocide – State responsibility – Direct obligation to prevent genocide “For the Court both changes – the movement of the undertaking from the Preamble to the first operative Article and the removal of the linking clause (“in accordance with the following articles”) – confirm that Article I does impose distinct obligations over and above those imposed by other Articles of the Convention. In particular, the Contracting Parties have a direct obligation to prevent genocide”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 113, para. 165.

State responsibility – Implied obligation “It must be observed at the outset that such an obligation is not expressly imposed by the actual terms of the Convention”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 113, para. 166.

State responsibility – Refraining from committing genocide “Under Article I the States parties are bound to prevent such an act, which it describes as “a crime under international law”, being committed. The Article does not expressis verbis require States to refrain from themselves committing genocide. However, in the view of the Court, taking into account the established purpose of the Convention, the effect of Article I is to prohibit States from themselves committing genocide”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 113, para. 166.

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“Secondly, it follows from the expressly stated obligation to prevent the commission of acts of genocide. That obligation requires the States parties, inter alia, to employ the means at their disposal, in circumstances to be described more specifically later in this Judgment, to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III. It would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 113, para. 166.

Commission of genocide – State responsibility – Actions of state organs or groups “The Court accordingly concludes that Contracting Parties to the Convention are bound not to commit genocide, through the actions of their organs or persons or groups whose acts are attributable to them. That conclusion must also apply to the other acts enumerated in Article III. Those acts are forbidden along with genocide itself in the list included in Article III. They are referred to equally with genocide in Article IX and without being characterized as “punishable”; and the “purely humanitarian and civilizing purpose” of the Convention may be seen as being promoted by the fact that States are subject to that full set of obligations, supporting their undertaking to prevent genocide”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, para. 167.

Commission of genocide – State responsibility – Concept of complicity – Criminal responsibility “It is true that the concepts used in paragraphs (b) to (e) of Article III, and particularly that of “complicity”, refer to well known categories of criminal law and, as such, appear particularly well adapted to the exercise of penal sanctions against individuals. It would however not be in keeping with the object and purpose of the Convention to deny that the international responsibility of a State – even



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though quite different in nature from criminal responsibility – can be engaged through one of the acts, other than genocide itself, enumerated in Article III”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, para. 167.

Interpretation – General “The conclusion that the Contracting Parties are bound in this way by the Convention not to commit genocide and the other acts enumerated in Article III is confirmed by one unusual feature of the wording of Article IX. But for that unusual feature and the addition of the word “fulfilment” to the provision conferring on the Court jurisdiction over disputes as to the “interpretation and application” of the Convention (an addition which does not appear to be significant in this case), Article IX would be a standard dispute settlement provision”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, para. 168.

State responsibility – Fulfilment of obligations under a multilateral convention – Interpretation “The word “including” tends to confirm that disputes relating to the responsibility of Contracting Parties for genocide, and the other acts enumerated in Article III to which it refers, are comprised within a broader group of disputes relating to the interpretation, application or fulfilment of the Convention. The responsibility of a party for genocide and the other acts enumerated in Article III arises from its failure to comply with the obligations imposed by the other provisions of the Convention, and in particular, in the present context, with Article III read with Articles I and II. According to the English text of the Convention, the responsibility contemplated is responsibility “for genocide” (in French, “responsabilité . . . en matière de génocide”), not merely responsibility “for failing to prevent or punish genocide”. The particular terms of the phrase as a whole confirm that Contracting Parties may be responsible for genocide and the other acts enumerated in Article III of the Convention”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 114, para. 168.

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State responsibility – Obligations and responsibilities under international law “The Court observes that the obligations in question in this case, arising from the terms of the Convention, and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature. This argument accordingly cannot be accepted”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 115, para. 170.

Commission of genocide – International humanitarian law – Individual responsibility “The Court is mindful of the fact that the famous sentence in the Nuremberg Judgment that “[c]rimes against international law are committed by men, not by abstract entities . . .” ( Judgment of the International Military Tribunal, Trial of the Major War Criminals, 1947, Official Documents, Vol. 1, p. 223) might be invoked in support of the proposition that only individuals can breach the obligations set out in Article III”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 115, para. 172.

Commission of genocide – International humanitarian law – Individual criminal liability “The Court sees nothing in the wording or the structure of the provisions of the Convention relating to individual criminal liability which would displace the meaning of Article I, read with paragraphs (a) to (e) of Article III, so far as these provisions impose obligations on States distinct from the obligations which the Convention requires them to place on individuals”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 117, para. 174.

Commission of genocide – Differentiation between individual and state responsibility “Furthermore, the fact that Articles V, VI and VII focus on individuals cannot itself establish that the Contracting Parties may not be subject to obligations not to commit genocide and the other acts enumerated in Article III”.



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Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 117, para. 174.

Self-defence actions – Part of wider category of measures qualified for essential security of a party “In the case concerning Military and Paramilitary Activities in and against Nicaragua the Court took the view that “action taken in self-defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI” – the text in that case corresponding to Article XX of the 1955 Treaty – “as ‘necessary to protect’ the ‘essential security interests’ of a party” (I.C.J. Reports 1986, p. 117, para. 224); and it cited an extract from the proceedings of the United States Senate Foreign Relations Committee tending to show that such had been the intentions of the Parties (ibid.)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 182, para. 40. Previous: Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, p. 117, para. 224.

Section IV Principles of Human Rights International human rights instruments – Derogation by states from conventional obligations “The Court would further observe that some human rights conventions, and in particular the International Covenant on Civil and Political Rights, contain provisions which States parties may invoke in order to derogate, under various conditions, from certain of their conventional obligations”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 192, para. 136.

International human rights instruments – Qualification of rights of parties “The Court would note, moreover, that certain provisions of human rights conventions contain clauses qualifying the rights covered by those provisions. There is no clause of this kind in Article 17 of the International Covenant on Civil and Political Rights”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 192, para. 136.

900

Sources and Rules of International Law International human rights instruments – Exception to the right of freedom of movement

“The Court would observe that the restrictions provided for under Article 12, paragraph 3, of the International Covenant on Civil and Political Rights are, by the very terms of that provision, exceptions to the right of freedom of movement contained in paragraph I. In addition, it is not sufficient that such restrictions be directed to the ends authorized: they must also be necessary for the attainment of those ends”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 193, para. 136.

Relation between international humanitarian law and human rights law “More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 178, para. 106.

Protection of human rights convention during armed conflict “More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches



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of international law, namely human rights law and, as lex specialis, international humanitarian law”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 178, para. 106.

Application of personal jurisdiction by states outside the territorial jurisdiction “The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 179, para. 109.

Application of personal jurisdiction by states outside the territorial jurisdiction “The travaux preparatoires of the Covenant confirm the Committee’s interpretation of Article 2 of that instrument. These show that, in adopting the wording chosen, the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory. They only intended to prevent persons residing abroad from asserting, vis-a-vis their State of origin, rights that do not fall within the competence of that State, but of that of the State of residence (see the discussion of the preliminary draft in the Commission on Human Rights, E/CN.4/SR.194, para. 46; and United Nations, Official Records of the General Assembly. Tenth Session. Annexes, A/2929, Part II, Chap. Y, para. 4 (1955)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 179, para. 109.

ICESCR – No provision on scope of application “The International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of application. This may be explicable by the fact that this Covenant guarantees rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction. Thus Article 14 makes provision for transitional measures in the case of any State

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which “at the time of becoming a Party has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 180, para. 112.

International humanitarian law enabling provisions on military exigencies “The Court would observe, however, that the applicable international humanitarian law contains provisions enabling account to be taken of military exigencies in certain circumstances”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 192, para. 135.

Sub-Chapter II General Principles of Law Custom and Customary Law – Rules and Principles of general or customary international law – Legal obligation – Principle of good faith “One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation . . .” ( Judgments, I.C.J. Reports 1974, p. 268, para. 46, and p. 473, para. 49; see also Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 67, para. 145. Previous: Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94.

Existence of erga omnes or peremptory norms of general international law – Exception to the principle of jurisdiction based upon the consent of the parties “Finally, the Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law ( jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties (see paragraph 64 above)”.



Sources and Rules of International Law

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Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 52, para. 125.

Recognition of principles underlying the Genocide Convention by states – Obligations flowing from the universal character of the principles for the states The Court will begin by reaffirming that “the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation” and that a consequence of that conception is “the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention)” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 31, para. 64.

Jus Cogens “Later in that Opinion, the Court referred to “the moral and humanitarian principles which are its basis” (ibid., p. 24). In earlier phases of the present case the Court has also recalled resolution 96 (I) (I.C.J. Reports 1993, p. 23; see also pp. 348 and 440) and has quoted the 1951 statement (I.C.J. Reports 1996 (II), p. 616). The Court reaffirmed the 1951 and 1996 statements in its Judgment of 3 February 2006 in the case concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), paragraph 64, when it added that the norm prohibiting genocide was assuredly a peremptory norm of international law ( jus cogens)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 111, para. 161. Previous: Judgment of 3 February 2006 in the case concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of the Congo v. Rwanda), paragraph 64.

Meaning of term “undertake” “Those characterizations of the prohibition on genocide and the purpose of the Convention are significant for the interpretation of the second proposition stated in Article I – the undertaking by the Contracting Parties to prevent and punish

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the crime of genocide, and particularly in this context the undertaking to prevent. Several features of that undertaking are significant. The ordinary meaning of the word “undertake” is to give a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligations of the Contracting Parties (cf., for example, International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966), Art. 2, para. 1; International Covenant on Civil and Political Rights (16 December 1966), Art. 2, para. 1, and 3, for example). It is not merely hortatory or purposive. The undertaking is unqualified (a matter considered later in relation to the scope of the obligation of prevention); and it is not to be read merely as an introduction to later express references to legislation, prosecution and extradition. Those features support the conclusion that Article I, in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles. That conclusion is also supported by the purely humanitarian and civilizing purpose of the Convention”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 111, para. 162.

General principles of law – Fulfilment of international obligations “As it has in other cases, the Court recalls the fundamental distinction between the existence and binding force of obligations arising under international law and the existence of a court or tribunal with jurisdiction to resolve disputes about compliance with those obligations. The fact that there is not such a court or tribunal does not mean that the obligations do not exist. They retain their validity and legal force. States are required to fulfil their obligations under international law, including international humanitarian law, and they remain responsible for acts contrary to international law which are attributable to them (e.g. case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment, I.C.J. Reports 2006, pp. 52–53, para. 127)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 104, para. 148. Previous: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment, I.C.J. Reports 2006, pp. 52–53, para. 127.



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General Principles of Law – Good faith “The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph I of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose. The French text of Article 41 reads as follows: Le texte francais de l’article 41 se lit comme suit: “1. La Cour a le pouvoir d’il indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent etre prises atitre provisoire. “1. La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent etre prises a titre provisoire. 2. En attendant l’arret definitif, l’indication de ces mesures est immediatement notifiee aux parties et au Conseil de securite.” (Emphasis added.) En attendant l’arret definitif, i’indication de ces mesures est immediatement notifiee aux parties et au Conseil de securite.” (Les italiques sont de la Cour.) In this text, the terms “indiquer” and “indication” may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words “doivent etre prises” have an imperative character. Dans ce texte les termes “indiquer” et “l’indication” peuvent etre consideres comme neutres au regard du caractere obligatoire des mesures en question; en revanche les mots “ doivent etre prises” ont un caractere imperatif. For its part, the English version of Article 41 reads as follows: Quant aelle, la version anglaise de l’article 41 se lit comme suit: “1. The Court shall have the power 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.

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“1. The Court shall have the power 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. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” (Emphasis added.) 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” (Les italiques sont de la Cour.)”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99.

Sub-Chapter III Treaties General General considerations “As was noted in that Judgment, the Court has had occasion. in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), to examine a provision in another treaty concluded by the United States, of which the text is substantially identical to that of Article XX, paragraph I (d). This was Article XXI, paragraph I (d), of the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. In its decision in that case, the Court observed that since that provision “contains a power for each of the parties to derogate from the other provisions of the Treaty, the possibility of invoking the clauses of that Article must be considered once it is apparent that certain forms of conduct by the United States would otherwise be in conflict with the relevant provisions of the Treaty” (I.C.J. Reports 1986, p. 117, para. 225)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 179, para. 34. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, I.C.J. Reports 1986, p. 117, para. 225).

General considerations “The Court will thus proceed to the interpretation of Article 35, paragraph 2, of the Statute, and will do so in accordance with customary international law,



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reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose. Interpretation must be based above all upon the text of the treaty. As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1049, para. 99.

General considerations “The Court observes that Articles 2 and 17 are located in different sections of the 1986 Convention. It notes in this regard that the Convention contains other provisions which, like Article 2, in certain cases authorize a refusal to provide mutual assistance which requires reasons to be given in accordance with Article 17. For example, Article 10, paragraph 2, indicates certain situations where the “transfer [of a] person in custody”, in the sense of paragraph 1 of that Article, could be refused. Furthermore, the Court notes that it is common, in comparable conventions, for similar provisions to be so deployed (see, for example, European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (UNTS, Vol. 472, Arts. 2 and 19); Convention Concerning Reciprocal Legal Assistance in Criminal Matters between France and Spain of 9 April 1969 (ibid., Vol. 746, Arts. 4, 7 and 14); and Convention on Judicial Assistance in Criminal Matters between Mexico and France of 27 January 1994 (ibid., Vol. 1891, Arts. 4 and 20)). The Court therefore considers that no legal inference is to be drawn from the arrangement of the text of the Convention”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 232, para. 156.

General considerations “The Court recalls that the exercise of a power to regulate may legitimately include placing limits on the activity in question”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 261, para. 126.

908

Sources and Rules of International Law Judicial task – Interpretation – Treaty – Freedom of court to select the ground to base its judgment

“The Court does not consider that the order in which the Articles of the 1956 Treaty were dealt with in the case concerning Military and Paramilitary Activities in and against Nicaragua was dictated by the economy of the Treaty; it was rather an instance of the Court’s “freedom to select the ground upon which it will base its judgment” (Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 180, para. 37. Previous: Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62.

Court’s discretion “In that decision, the Court observed that it did not then have to enter into the question whether Article X, paragraph 1, “is restricted to commerce ‘between’ the Parties” (ibid. p. 817. para. 44). However, it is now common ground between the Parties that that provision is in terms limited to the protection of freedom of commerce “between the territories of the two High Contracting Parties”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 200, para. 82.

Terminology General considerations – Terminology “In the Gabčíkovo-Nagymaros case, the Court, after recalling that “[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development”, added that “[i]t is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, paras. 140–141)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 48, para. 76. Previous: Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, paras. 140–141.



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Terminology – “comercio” – generic term “This is so in the present case in respect of the term “comercio” as used in Article VI of the 1858 Treaty. First, this is a generic term, referring to a class of activity. Second, the 1858 Treaty was entered into for an unlimited duration; from the outset it was intended to create a legal régime characterized by its perpetuity”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 243, para. 67.

General considerations – Terminology “The Court has observed in this respect, in its Order of 13 July 2006, that such use should allow for sustainable development which takes account of “the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 80)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 48, para. 75. Previous: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 80).

Terminology “The Court observes in this respect that the word arbitration, for purposes of public international law, usually refers to “the settlement of differences between States by judges of their own choice, and on the basis of respect for law””. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 76, para. 113.

Interpretation – Meaning of a term – Arbitration “The fact that a decision is not an arbitral award does not however mean that the decision is devoid of legal effect, as was acknowledged by the Court of Arbitration in the Dubai/Sharjah Border Arbitration (International Law Reports Vol. 91, p. 577). In order to determine the legal effect of the 1939 British decision, the events which preceded and immediately followed its adoption need to be recalled”.

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Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 77, para. 117.

Terminology – “commercial purpose” “As has just been said, two types of private navigation are certainly covered by the right of free navigation pursuant to Article VI of the 1858 Treaty: the navigation of vessels carrying goods intended for commercial transactions; and that of vessels carrying passengers who pay a price other than a token price (or for whom a price is paid) in exchange for the service thus provided. In the first instance, the commercial activity is conducted by persons who are the owners of the goods intended for sale. These persons may themselves be carried on the vessel: they can also entrust their goods for carriage to the vessel’s operator for an agreed price or free of charge. This last aspect is of no relevance: in any event, navigation which is carried out in order to transport goods intended for sale, or goods that have just been purchased, in the context of a commercial exchange must be regarded as taking place “for the purposes of commerce”, whether or not the owner of the goods is onboard the vessel, and whether or not the vessel’s operator has been paid to provide carriage. It is understood that navigation “for the purposes of commerce” also includes the return journey of persons who have transported goods intended for sale . . . In the second instance, however, the fact that the vessel’s owner receives payment for his activity is critical. Indeed, if the carriage of passengers is considered, it is not the passengers themselves who are exercising a commercial activity (unless they are travelling in order to transport goods, in which case the journey falls under the previous instance), it is the carrier, provided that he does so to make a profit”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 245, para. 73.

Terminology – Term “commerce” – Limitation of meaning as per the practice “The Court has already indicated that it could not subscribe to a definition of the word “commerce” as broad as the one put forward by Costa Rica. It has also indicated (in paragraph 71 above) that the carriage of passengers free of charge, or the movement of persons on their own vessels for purposes other than the conduct of commercial transactions, could not fall within the scope of “navigation for the purposes of commerce” within the meaning of Article VI of the 1858 Treaty”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 245, para. 75.



Sources and Rules of International Law

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Terminology – Public or private vessels – Circumstances and meaning “It is clear that the 1858 Treaty does not establish, in its Article VI, any special régime for “official” (or “public”) vessels. The only criterion provided for by Article VI is based not on the public or private ownership of the vessel but on the purpose of navigation: either it is undertaken for the “purposes of commerce” and benefits from the freedom established; or it is undertaken for purposes other than “commerce” and it does not. From this point of view the distinction between public and private vessels is devoid of legal significance. In the same way that a part of private navigation is not covered by the “perpetual right of free navigation” (in the case of pleasure craft for example), conversely, it is not inconceivable that “public vessels” might sail for the “purposes of commerce”, if they met the conditions on which such a characterization depends”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 247, para. 80.

Terminology – Right to freedom of navigation – Test of essential conditions “For essentially the reasons given by the Parties, the Court concludes that Nicaragua has the power to regulate the exercise by Costa Rica of its right to freedom of navigation under the 1858 Treaty. That power is not unlimited, being tempered by the rights and obligations of the Parties. A regulation in the present case is to have the following characteristics: (1) it must only subject the activity to certain rules without rendering impossible or substantially impeding the exercise of the right of free navigation; (2) it must be consistent with the terms of the Treaty, such as the prohibition on the unilateral imposition of certain taxes in Article VI; (3) it must have a legitimate purpose, such as safety of navigation, crime prevention and public safety and border control; (4) it must not be discriminatory and in matters such as timetabling must apply to Nicaraguan vessels if it applies to Costa Rican ones; (5) it must not be unreasonable, which means that its negative impact on the exercise of the right in question must not be manifestly excessive when measured against the protection afforded to the purpose invoked”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 249, para. 87.

912

Sources and Rules of International Law Terminology – Injury to potential for future commerce versus injury to freedom of commerce – No identification

“Injury to potential for future commerce is however, in the Court’s view, not necessarily to be identified with injury to freedom of commerce, within the meaning of Article X, paragraph I, of the 1955 Treaty”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 205, para. 92.

Terminology – Freedom of commerce “In its Judgment of 12 December 1996, the Court emphasized that the Treaty protected “freedom of commerce” rather than merely “commerce”; but deduced from this no more than that “the possibility must be entertained that [that freedom] could actually be impeded as a result of acts entailing the destruction of goods destined to be exported, or capable of affecting their transport and their storage with a view to export” (I.C.J. Reports 1996 (11), p. 819, para. 50; emphasis added)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 205, para. 92.

Terminology – Value added approach to the final product – Nature of the successive commercial transactions versus successive technical processes “Whether, according to international trade law criteria, such as the “substantial transformation” principle, or the “value added approach”, the final product could still retain for some purposes an Iranian character, is not the question before the Court. In this respect, what seems to the Court to be determinative is the nature of the successive commercial transactions relating to the oil, rather than the successive technical processes that it underwent”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 207, para. 96.

Terminology – Interpretation of word commerce “The Court in its 1996 Judgment contemplated the possibility that freedom of commerce could be impeded not only by “the destruction of goods destined to be exported”, but also by acts “capable of affecting their transport and their storage with a view to export” (I.C.J. Reports 1996 (11)”.



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Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 202, para. 86.

Interpretation – Treaty – Interpretation of word commerce “The Court also included in the category of acts interfering with freedom of commerce “acts . . . capable of affecting [the] transport and storage with a view to export” of goods destined to be exported. No storage of oil was effected on the platforms; as regards transport, the Court noted in 1996 that “the oil pumped from the platforms attacked in October 1987 passed from there by subsea line to the oil terminal on Lavan Island and that the Salman complex, object of the attack of April 1988, was also connected to the oil terminal on Lavan Island by subsea line” (I.C.J. Reports 1996 (11), pp. 819–820, para. 50)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 202, para. 88.

Terminology – Interference with the freedom of international commerce in principle “However that may be, the Court considers that where a State destroys another State’s means of production and transport of goods destined for export, or means ancillary or pertaining to such production or transport, there is in principle an interference with the freedom of international commerce”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 203, para. 89.

Terminology – Treaties of protection meaning and practice “In relation to a treaty of this kind in another part of the world, Max Huber, sitting as sole arbitrator in the Island of Palmas case, explained that such a treaty “is not an agreement between equals; it is rather a form of internal organisation of a colonial territory, on the basis of autonomy of the natives . . . And thus suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations.” (United Nations, Reports of International Arbitral Awards (RIAA), Vol. II, pp. 858–859)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 405, para. 205.

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Sources and Rules of International Law Terminology – Treaties of protection meaning and practice

“The Court calls attention to the fact that the international legal status of a “Treaty of Protection” entered into under the law obtaining at the time cannot be deduced from its title alone. Some treaties of protection were entered into with entities which retained thereunder a previously existing sovereignty under international law. This was the case whether the protected party was henceforth termed “protectorat” (as in the case of Morocco, Tunisia and Madagascar (1885; 1895) in their treaty relations with France) or “a protected State” (as in the case of Bahrain and Qatar in their treaty relations with Great Britain). In sub-Saharan Africa, however, treaties termed “treaties of protection” were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 404, para. 205.

CONCLUSION SIGNATURE Signature “The Court first observes that during the era of the Berlin Conference the European Powers entered into many treaties with local rulers. Great Britain concluded some 350 treaties with the local chiefs of the Niger delta. Among these were treaties in July 1884 with the Kings and Chiefs of Opobo and, in September 1884, with the Kings and Chiefs of Old Calabar. That these were regarded as notable personages is clear from the fact that these treaties were concluded by the consul, expressly as the representative of Queen Victoria, and the British undertakings of “gracious favour and protection” were those of Her Majesty the Queen of Great Britain and Ireland”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 404, para. 203.

Conclusion – Signature and/or ratification is a choice with States “Thus while in international practice a two-step procedure consisting of signature and ratification is frequently provided for in provisions regarding entry into force of a treaty, there are also cases where a treaty enters into force immediately upon signature. Both customary international law and the Vienna Convention on the



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Law of Treaties leave it completely up to States which procedure they want to follow”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 429 para. 264.

Signature “It is true that the paragraph goes on to say “unless that violation was manifest and concerned a rule of its internal law of fundamental importance”, while paragraph 2 of Article 46 provides that “[a] violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith”. The rules concerning the authority to sign treaties for a State are constitutional rules of fundamental importance. However, a limitation of a Head of State’s capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least properly publicized. This is particularly so because Heads of State belong to the group of persons who, in accordance with Article 7, paragraph 2, of the Convention “[i]n virtue of their functions and without having to produce full powers” are considered as representing their State”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 430, para. 265.

Signature – Capacity of Heads of State “It is true that the paragraph goes on to say “unless that violation was manifest and concerned a rule of its internal law of fundamental importance”, while paragraph 2 of Article 46 provides that “[a] violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith”. The rules concerning the authority to sign treaties for a State are constitutional rules of fundamental importance. However, a limitation of a Head of State’s capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least properly publicized. This is particularly so because Heads of State belong to the group of persons who, in accordance with Article 7, paragraph 2, of the Convention “[i]n virtue of their functions and without having to produce full powers” are considered as representing their State”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 430, para. 265.

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Sources and Rules of International Law Interpretation – Treaty – Supplementary means of interpretation

“Article 32 provides that: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 . . . leaves the meaning ambiguous or obscure; or . . . leads to a result which is manifestly obscure or unreasonable.” (See Oil Platforms, Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 812, para. 23: see, similarly, Kasikili/Sedudu Island (Botswana/ Namibia), Judgment. I.C.J. Reports [999 (1I), p. 1059, para. 18, and Sovereignty overPulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, para. 94. Previous: Oil Platforms Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 812, para. 23. Kasikili/Sedudu Island (Botswana/ Namibia), Judgment. I.C.J. Reports [999 (1I), p. 1059, para. 18. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37.

EFFECTS Effects – Efficacy towards third States “Thus, the Court ruled that, while Article I of the United States-Nicaraguan Treaty did create a general obligation to act towards the other party in a friendly manner, that obligation did not extend to all relations between the parties, but rather was restricted to the specific fields regulated by the treaty”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 217, para. 107.

Clauses – Special provisions “Taking the natural and ordinary meaning of the words “special provisions”, the reference must in the view of the Court be to treaties that make “special ­provision” in relation to the Court, and this can hardly be anything other than provision for the settlement of disputes between the parties to the treaty by reference of the matter to the Court. As for the words “treaties in force”, in



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their natural and ordinary meaning they do not indicate at what date the treaties contemplated are to be in force, and thus they may lend themselves to different interpretations. One can construe those words as referring to treaties which were in force at the time that the Statute itself came into force, as was contended by certain Respondents; or to those which were in force on the date of the institution of proceedings in a case in which such treaties are invoked. In favour of this latter interpretation, it may be observed that the similar expression “treaties and conventions in force” is found in Article 36, paragraph 1, of the Statute, and the Court has interpreted it in this sense (for example, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, para. 19). The expression “treaty or convention in force” in Article 37 of the Statute has also been read as meaning in force at the date proceedings were instituted (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 27)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1050, para. 100. Previous: Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, para. 19. Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 27.

Clauses – Special provisions – Treaties in force “Taking the natural and ordinary meaning of the words “special provisions”, the reference must in the view of the Court be to treaties that make “special provision” in relation to the Court, and this can hardly be anything other than ­provision for the settlement of disputes between the parties to the treaty by reference of the matter to the Court. As for the words “treaties in force”, in their natural and ordinary meaning they do not indicate at what date the treaties contemplated are to be in force, and thus they may lend themselves to different interpretations. One can construe those words as referring to treaties which were in force at the time that the Statute itself came into force, as was contended by certain Respondents; or to those which were in force on the date of the institution of proceedings in a case in which such treaties are invoked. In favour of this latter interpretation, it may be observed that the similar expression “treaties and conventions in force” is found in Article 36, paragraph 1, of the Statute, and the Court has interpreted it in this sense (for example, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at

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Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, para. 19). The expression “treaty or convention in force” in Article 37 of the Statute has also been read as meaning in force at the date proceedings were instituted (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 27)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1050, para. 100. Previous: Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, para. 19. Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 27.

Clauses – Compromissory clause in a multilateral treaty “When a compromissory clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out therein (ibid., p. 245, para. 71)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 32, para. 65.

Conclusion – Reservations “The Court notes, however, that it has already found that reservations are not prohibited under the Genocide Convention (Advisory Opinion in the case concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, pp. 22 et seq.)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 32, para. 66.

Conclusion – Reservations “Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 32, para. 66.



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Conclusion – Reservations “In so far as the DRC contended further that Rwanda’s reservation is in conflict with a peremptory norm of general international law, it suffices for the Court to note that no such norm presently exists requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention. Rwanda’s reservation cannot therefore, on such grounds, be regarded as lacking legal effect”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 33, para. 69.

Reservations “The Court will therefore begin by examining whether Rwanda has in fact withdrawn its reservation. Only if it finds that Rwanda has maintained its reservation will the Court need to address the DRC’s arguments concerning the reservation’s validity”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 46.

Reservations “The validity of this décret-loi under Rwandan domestic law has been denied by Rwanda. However, in the Court’s view the question of the validity and effect of the décret-loi within the domestic legal order of Rwanda is different from that of its effect within the international legal order. Thus a clear distinction has to be drawn between a decision to withdraw a reservation to a treaty taken within a State’s domestic legal order and the implementation of that decision by the competent national authorities within the international legal order, which can be effected only by notification of withdrawal of the reservation to the other States parties to the treaty in question. It is a rule of international law, deriving from the principle of legal security and well established in practice, that, subject to agreement to the contrary, the withdrawal by a contracting State of a reservation to a multilateral treaty takes effect in relation to the other contracting States only when they have received notification thereof. This rule is expressed in Article 22, paragraph 3 (a), of the Vienna Convention on the Law of Treaties, which provides as follows: “3. Unless the Treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another Contracting State only when notice of it has been received by that State.” Article 23,

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paragraph 4, of that same Convention further provides that “[t]he withdrawal of a reservation or of an objection to a reservation must be formulated in writing”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 25, para. 41.

Reservations – Notification in national official journal versus obligation to notify at the international level “In the Court’s view, the adoption of that décret-loi and its publication in the Official Journal of the Rwandese Republic cannot in themselves amount to such notification. In order to have effect in international law, the withdrawal would have had to be the subject of a notice received at the international level”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 26, para. 42.

Reservations – Notification of reservation to a multilateral treaty – Mean and method of notification – Office of the UN Secretary-General “It observes that this Convention is a multilateral treaty whose depositary is the Secretary-General of the United Nations, and it considers that it was normally through the latter that Rwanda should have notified withdrawal of its reservation. Thus the Court notes that, although the Convention does not deal with the question of reservations, Article XVII thereof confers particular responsibilities on the United Nations Secretary-General in respect of notifications to States parties to the Convention or entitled to become parties; it is thus in principle through the medium of the Secretary-General that such States must be informed both of the making of a reservation to the Convention and of its withdrawal”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 26, para. 43.

Reservations – State’s reservation to a treaty excluding Court’s jurisdiction “A good illustration of this reasoning is found in the Judgment handed down by the Court on 18 December 1978 in the case concerning Aegean Sea Continental Shelf (Greece v. Turkey) (I.C.J. Reports 1978, p. 3). Called upon to interpret a State’s reservation to a treaty excluding from the Court’s jurisdiction “disputes relating to territorial status” of that State, where the meaning of “territorial status” was contested, the Court stated: “Once it is established that the expression ‘the



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territorial status of Greece’ was used in Greece’s instrument of accession [to the General Act of 1928] as a generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time. This presumption, in the view of the Court, is even more compelling when it is recalled that the 1928 Act was a convention for the pacific settlement of disputes designed to be of the most general kind and of continuing duration, for it hardly seems conceivable that in such a convention terms like ‘domestic jurisdiction’ and ‘territorial status’ were intended to have a fixed content regardless of the subsequent evolution of international law.” (Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 32, para. 77)”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 242, para. 65. Previous: Aegean Sea Continental Shelf (Greece v. Turkey) (I.C.J. Reports 1978, p. 3); Judgment, I.C.J. Reports 1978, p. 32, para. 77.

PERFORMANCE GOOD FAITH Interpretation – Treaty – Good faith “The Court would recall that, according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, para. 94.

Performance “The Court considers that the procedural obligations of informing, notifying and negotiating constitute an appropriate means, accepted by the Parties, of achieving the objective which they set themselves in Article 1 of the 1975 Statute. These obligations are all the more vital when a shared resource is at issue, as in the case

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of the River Uruguay, which can only be protected through close and continuous co-operation between the riparian States”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 51, para. 81.

Performance “[A] joint mechanism with regulatory, executive, administrative, technical and conciliatory functions, entrusted with the proper implementation of the rules contained in the 1975 Statute governing the management of the shared river resource; . . . [a] mechanism [which] constitutes a very important part of that treaty régime” (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, pp. 133–134, para. 81)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 52, para. 86. Previous: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, pp. 133–134, para. 81.

Performance “The Court begins its examination of Article 2 of the 1986 Convention by observing that, while it is correct, as France claims, that the terms of Article 2 provide a State to which a request for assistance has been made with a very considerable discretion, this exercise of discretion is still subject to the obligation of good faith codified in Article 26 of the 1969 Vienna Convention on the Law of Treaties (see Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, p. 30, and Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167; for the competence of the Court in the face of provisions giving wide discretion, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 116, para. 222, and Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 183, para. 43)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 229, para. 145. Previous: German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, p. 30. Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167.



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Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 116, para. 222. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 183, para. 43.

Performance “[T]he Court is asked to rule that a State which enters into a treaty of friendship binds itself, for so long as the Treaty is in force, to abstain from any act towards the other party which could be classified as an unfriendly act, even if such act is not in itself the breach of an international obligation. Such a duty might of course be expressly stipulated in a treaty, or might even emerge as a necessary implication from the text; but as a matter of customary international law, it is not clear that the existence of such a far reaching rule is evidenced in the practice of States. There must be a distinction, even in the case of a treaty of friendship, between the broad category of unfriendly acts, and the narrower category of acts tending to defeat the object and purpose of the Treaty. That object and purpose is the effective implementation of friendship in the specific fields provided for in the Treaty, not friendship in a vague general sense.” (Merits, Judgment, I.C.J. Reports 1986, pp. 136–137, para. 273)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 217, para. 107.

INTERPRETATION RULE OF EFFECTIVENESS Rule of effectiveness “In the interpretation of the 1975 Statute, taking account of relevant rules of international law applicable in the relations between the Parties, whether these are rules of general international law or contained in multilateral conventions to which the two States are parties, nevertheless has no bearing on the scope of the jurisdiction conferred on the Court under Article 60 of the 1975 Statute, which remains confined to disputes concerning the interpretation or application of the Statute”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 46, para. 66.

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“The provisions of the 1977 Treaty of Friendship and Co-operation are “relevant rules” within the meaning of Article 31, paragraph (3) (c), of the Vienna Convention. That is so even though they are formulated in a broad and general manner, having an aspirational character. According to the most fundamental of these rules, equality and mutual respect are to govern relations between the two countries; co-operation and friendship are to be preserved and strengthened. While this does not provide specific operational guidance as to the practical application of the Convention of 1986, that Convention must nevertheless be interpreted and applied in a manner which takes into account the friendship and co-operation which France and Djibouti posited as the basis of their mutual relations in the Treaty of 1977”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 219, para. 113.

Rule of effectiveness “Ukraine placed particular emphasis on the Court’s dictum in the case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) that “[t]he establishment of a permanent maritime boundary is a matter of grave importance and agreement is not easily to be presumed” ( Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253). That dictum, however, is not directly relevant since in that case no written agreement existed and therefore any implicit agreement had to be established as a matter of fact, with the burden of proof lying with the State claiming such an agreement to exist. In the present case, by contrast, the Court has before it the 1949 Agreement and the subsequent agreements. Rather than having to make findings of fact, with one or other Party bearing the burden of proof as regards claimed facts, the Court’s task is to interpret those agreements. In carrying out that task, the Court must first focus its attention on the terms of those documents including the associated sketch-maps”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68. Previous: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253.



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Rule of effectiveness “In this regard, the Court is of the opinion that there is reason to take into account the provisions of the Treaty as a whole, especially those fixing the boundary between the two States, in order to draw, if need be, certain necessary implications. In other words, even if no provision expressly guaranteeing a right of noncommercial navigation to the inhabitants of the Costa Rican bank can be found in the Treaty, the question must be asked whether such a right does not flow from other provisions with a different purpose, but of which it may, to a certain extent, be the necessary consequence”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 246, para. 77.

Rule of effectiveness – Imposition of certain charges – Effect on determination of commercial purposes “However, the part of the text of Article VI on which Costa Rica depends concerns only the imposition of certain charges. Because that provision does not extend to the full range of measures taken to regulate navigation on the river, it cannot be read as imposing a general obligation of notification and consultation, and the Court need not consider that argument further”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 251, para. 92.

Rule of effectiveness – Consideration of meaning of a term while applying the provision of a treaty “This does not however signify that, where a term’s meaning is no longer the same as it was at the date of conclusion, no account should ever be taken of its meaning at the time when the treaty is to be interpreted for purposes of applying it. On the one hand, the subsequent practice of the parties, within the meaning of Article 31 (3) (b) of the Vienna Convention, can result in a departure from the original intent on the basis of a tacit agreement between the parties. On the other hand, there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used – or some of them – a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law. In such instances it is indeed in order to respect the parties’ common intention at the time the treaty was concluded, not to depart from it,

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that account should be taken of the meaning acquired by the terms in question upon each occasion on which the treaty is to be applied”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 242, para. 64.

Rule of effectiveness – Vienna Convention on the Law of Treaties – Any relevant rules of international law applicable in the relation between parties “Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties, interpretation must take into account “any relevant rules of international law applicable in the relations between the parties” (Art. 31, para. 3 (e)). It is hardly consistent with Article I to interpret Article XX, paragraph I (d), to the effect that the “measures” there contemplated could include even an unlawful use of force by one party against the other. Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties, interpretation must take into account “any relevant rules of international law applicable in the relations between the parties” (Art. 31, para. 3 (e))”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 182, para. 41.

Grammatical principle “It is now appropriate to consider the issue of the meaning of the phrase “con objetos de” as used in Article VI of the 1858 Treaty, specifically whether it means “for the purposes of ” – as Costa Rica contends – or “with articles of ” – as Nicaragua contends”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 238, para. 50.

Grammatical principle “The main reason for this is that ascribing the meaning “with goods” or “with articles” to the phrase “con objetos” results in rendering meaningless the entire sentence in which the phrase appears”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 238, para. 52.



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Grammatical principle – Language and preference for using words by parties in different places in a treaty “This would tend to show that when the Parties at the time wished to refer to physical property giving rise to commercial transactions, they used a term other than “objetos de comercio”, a term having the advantage of being unambiguous. Further, it is reasonable to believe that the Parties’ replacement of one word with another in two successive instruments, the second of which was drafted shortly after the first, indicates that the Parties wished in the second to refer to something different from that in the first and that the two terms used must not be taken to mean the same thing”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 239, para. 5.

Grammatical principles – Mistake in translation – Possible consequences “By itself, this argument is undoubtedly not conclusive, because the only authoritative version of the instrument is the Spanish one and at the time the Parties might have made the same mistake in translation, which cannot be treated as an implicit amendment of the 1858 Treaty. It is also no doubt true that Nicaragua might have paid insufficient heed to the meaning of the term “objetos de comercio”, which was not at issue in the questions submitted to the arbitrator; this could be the explanation for a translation done by it in haste. It nonetheless remains the case that this concurrence, occurring relatively soon after the Treaty was concluded, is a significant indication that at the time both Parties understood “con objetos de comercio” to mean “for the purposes of commerce” ”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 240, para. 56.

Grammatical principle “The preparatory work of Article 41 shows that the preference given in the French text to “indiquer” over “ordonner” was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 505, para. 107.

928

Sources and Rules of International Law Natural and Ordinary Meaning of the words employed

“The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph I of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99.

Natural and Ordinary Meaning of the words employed “The Court at the outset recalls that any declaration “must be interpreted as it stands, having regard to the words actually used” (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105), and that a reservation must be given effect “as it stands” (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27)”. Aerial Incident of 10 August 1999(Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 30, para. 42. Previous: Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952,p. 105 Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27.

Natural and ordinary meaning of the words employed “Thus, in the present instance a literal analysis of the sentence containing the words requiring interpretation leads to one of the proposed meanings being preferred over the other”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 2397, para. 52.



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Natural and ordinary meaning of the words employed “The Court also rejected the view, advanced by the United States, that the word “commerce” in Article X. paragraph 1, is confined to maritime commerce (ibid., para. 43). After examining the contentions of the Parties as to the meaning of the word, the Court concluded that “it would be a natural interpretation of the word ‘commerce’ in Article X, paragraph I, of the Treaty of 1955 that it includes commercial activities in general – not merely the immediate act of purchase and sale, but also the ancillary activities integrally related to commerce” (ibid., p. 819, para. 49)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 200, para. 80.

Natural and ordinary meaning of the words employed – Interpretation of word commerce “The Court also rejected the view, advanced by the United States, that the word “commerce” in Article X. paragraph 1, is confined to maritime commerce (ibid., para. 43). After examining the contentions of the Parties as to the meaning of the word, the Court concluded that “it would be a natural interpretation of the word ‘commerce’ in Article X, paragraph I, of the Treaty of 1955 that it includes commercial activities in general – not merely the immediate act of purchase and sale, but also the ancillary activities integrally related to commerce” (ibid., p. 819, para. 49)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 200, para. 80.

CONTEXT Context of the Treaty “The 1975 Statute is also a treaty which predates the entry into force of the Vienna Convention on the Law of Treaties. In interpreting the terms of the 1975 Statute, the Court will have recourse to the customary rules on treaty interpretation as reflected in Article 31 of the Vienna Convention. Accordingly the 1975 Statute is to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the [Statute] in their context and in light of its object and purpose”. That interpretation will also take into account, together with the context, “any relevant rules of international law applicable in the relations between the parties”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 46, para. 65.

930

Sources and Rules of International Law Context

“The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph I of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99.

“Having regard to the requirement that the terms of a treaty are to be interpreted “in their context and in the light of its object and purpose”, the Court makes the following observations . . .”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 232, para. 154.

Treaty – Interpretation – Context “The Court observes that the Agreement has to be read as a whole and in context”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 72, para. 188.

Context “Against this background the Court concluded: “that the objective of peace and friendship proclaimed in Article I of the Treaty of 1955 is such as to throw light on the interpretation of the other Treaty provisions . . . Article I is thus not without legal significance for such an interpretation, but cannot, taken in isolation, be a basis for the jurisdiction of the Court.” (Ibid., p. 815, para. 31)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 218, para. 109.



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Context “In the view of the Court, Article 31, paragraph 3, of the Vienna Convention on the Law of Treaties of 23 May 1969 is pertinent as regards this matter. It states that, in interpreting a treaty, “[t]here shall be taken into account, together with the context: . . . (c) any relevant rules of international law applicable in the relations between the parties”. This provision is to be regarded as a codification of customary international law (see Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1075, para. 18) and is therefore applicable to the treaty relations between Djibouti and France under consideration in the present case despite the fact that neither Djibouti nor France is a party to the Vienna Convention”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 219, para. 112. Previous: Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1075, para. 18.

Context “The third and final argument of the Respondent against the proposition that the Contracting Parties are bound by the Convention not to commit genocide is based on the preparatory work of the Convention and particularly of Article IX. The Court has already used part of that work to confirm the operative significance of the undertaking in Article I (see paragraphs 164 and 165 above), an interpretation already determined from the terms of the Convention, its context and purpose”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 117, para. 175.

HISTORICAL CONTEXT Historical context “In the interpretation of the 1975 Statute, taking account of relevant rules of international law applicable in the relations between the Parties, whether these are rules of general international law or contained in multilateral conventions to which the two States are parties, nevertheless has no bearing on the scope of the jurisdiction conferred on the Court under Article 60 of the 1975 Statute, which remains confined to disputes concerning the interpretation or application of the Statute”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 46, para. 66.

932

Sources and Rules of International Law Historical context

“In light of this analysis, in the context of the history surrounding the conclusion of the 1824 Anglo-Dutch Treaty, the Court is led to conclude that the division of the old Sultanate of Johor and the creation of the two Sultanates of Johor and of Riau-Lingga were part of the overall scheme agreed upon by the United Kingdom and the Netherlands that came to be reflected in the 1824 Anglo-Dutch Treaty. In other words, the Treaty was the legal reflection of a political settlement reached between the two colonial Powers, vying for hegemony for many years in this part of the world, to divide the territorial domain of the old Sultanate of Johor into two sultanates to be placed under their respective spheres of influence. Thus in this scheme there was no possibility for any legal vacuum left for freedom of action to take lawful possession of an island in between these two spheres of influence”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 44, para. 98.

Historical context “The Court first notes that the Procès-Verbaux of 1949 resulted from the work of the Joint Soviet-Romanian Border Commission implementing the Protocol to Specify the Line of the State Boundary between the People’s Republic of Romania and the Union of Soviet Socialist Republics, signed in Moscow on 4 February 1948 (hereinafter “the 1948 Protocol”). It emerged from these negotiations that this Protocol was primarily aimed at the modification of what had been agreed upon by the 1947 Paris Peace Treaty between the Allied and Associated Powers and Romania, which confirmed that the Soviet-Romanian border was fixed “in accordance with the Soviet-Romanian Agreement of June 28, 1940, and the SovietCzechoslovak Agreement of June 29, 1945”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 82, para. 55.

Historical context “In the first place, it is for the Court to interpret the provisions of a treaty in the present case. It will do so in terms of customary international law on the subject, as reflected in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, as the Court has stated on several occasions (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),



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pp. 109–110, para. 160; see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21–22, para. 41)”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 237, para. 47. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109–110, para. 160. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21–22, para. 41.

OBJECT AND PURPOSE Object and purpose of the Treaty “The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph I of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99.

Interpretation – Purpose “It is the opinion of the Court that compliance with this obligation cannot be expected to come through the individual action of either Party, acting on its own. Its implementation requires co-ordination through the Commission. It reflects the common interest dimension of the 1975 Statute and expresses one of the purposes for the establishment of the joint machinery which is to co-ordinate the actions and measures taken by the Parties for the sustainable management and environmental protection of the river. The Parties have indeed adopted such measures through the promulgation of standards by CARU. These standards are to be found in Sections E3 and E4 of the CARU Digest. One of the purposes of Section E3 is “[t]o protect and preserve the water and its ecological balance”. Similarly, it is stated in Section E4 that the section was developed “in accordance with . . . Articles 36, 37, 38, and 39”.

934

Sources and Rules of International Law

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 73, para. 173.

Object and purpose “The object of the 1986 Convention on Mutual Assistance in Criminal Matters is to provide for mutual assistance to the fullest extent possible (Art. 1), with refusals being limited to a category of permitted exceptions”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 232, para. 155.

Object and Purpose “The Court notes that the purpose of the 1973 Convention is to prevent serious crimes against internationally protected persons and to ensure the criminal prosecution of presumed perpetrators of such crimes. It is consequently not applicable to the specific question of immunity from jurisdiction in respect of a witness summons addressed to certain persons in connection with a criminal investigation, and the Court cannot take account of it in this case”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 233, para. 159.

Object and purpose “The Court proceeded once again to put the general clause stipulated in Article I in context. It considered “that such a general formulation cannot be interpreted in isolation from the object and purpose of the Treaty in which it is inserted” (Oil Platforms (Islamic Republic of Iran v. United States of America), I.C.J. Reports 1996 (II), p. 813, para. 27)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 218, para. 109. Previous: Oil Platforms (Islamic Republic of Iran v. United States of America), I.C.J. Reports 1996 (II), p. 813, para. 27.

Object and purpose “The Court emphasized: “Article I cannot be interpreted as incorporating into the Treaty all of the provisions of international law concerning such relations . . . It



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follows that Article I must be regarded as fixing an objective, in the light of which the other Treaty provisions are to be interpreted and applied.” (Ibid., p. 814, para. 28)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 218, para. 109.

Object and purpose “But this is as far as the relationship between the two instruments can be explained in legal terms. An interpretation of the 1986 Convention duly taking into account the spirit of friendship and co-operation stipulated in the 1977 Treaty cannot possibly stand in the way of a party to that Convention relying on a clause contained in it which allows for non-performance of a conventional obligation under certain circumstances”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 219, para. 114.

Object and purpose “Article 38, paragraph 5, of the Rules of Court must also be read and interpreted in the light of paragraph 2 of that Article, which reads as follows: “The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based.” The expression “as far as possible” used in this provision was inserted in the Rules of Court of the Permanent Court of International Justice in 1936, precisely in order to preserve the possibility for the Court to found its jurisdiction on forum prorogatum (Acts and Documents Concerning the Organization of the Court: Elaboration of the Rules of Court of March 11th, 1936, P.C.I.J., Series D, No. 2, Add. 3, pp. 159–160)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 205, para. 64. Previous: Acts and Documents Concerning the Organization of the Court: Elaboration of the Rules of Court of March 11th, 1936, P.C.I.J., Series D, No. 2, Add. 3, pp. 159–160.

936

Sources and Rules of International Law

Object and purpose – Uses for commercial and non-commercial purposes – Provisions of the Treaty as a whole and fixation of boundaries “The Court is of the opinion that it cannot have been the intention of the authors of the 1858 Treaty to deprive the inhabitants of the Costa Rican bank of the river, where that bank constitutes the boundary between the two States, of the right to use the river to the extent necessary to meet their essential requirements, even for activities of a noncommercial nature, given the geography of the area. While choosing, in Article II of the Treaty, to fix the boundary on the river bank, the parties must be presumed, in view of the historical background to the conclusion of this Treaty and of the Treaty’s object and purpose as defined by the Preamble and Article I, to have intended to preserve for the Costa Ricans living on that bank a minimal right of navigation for the purposes of continuing to live a normal life in the villages along the river. The Court considers that while such a right cannot be derived from the express language of Article VI, it can be inferred from the provisions of the Treaty as a whole and, in particular, the manner in which the boundary is fixed”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 246, para. 79.

Context and purpose “The third and final argument of the Respondent against the proposition that the Contracting Parties are bound by the Convention not to commit genocide is based on the preparatory work of the Convention and particularly of Article IX. The Court has already used part of that work to confirm the operative significance of the undertaking in Article I (see paragraphs 164 and 165 above), an interpretation already determined from the terms of the Convention, its context and purpose”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 117, para. 175.

Intention of the Parties “The Court does not agree with this second argument. It is true that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s conclusion. That may lead a court seised of a dispute, or the parties themselves, when they seek to determine the meaning of a treaty for purposes of good-faith compliance with it, to ascertain the meaning a term had when



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the treaty was drafted, since doing so can shed light on the parties’ common intention. The Court has so proceeded in certain cases requiring it to interpret a term whose meaning had evolved since the conclusion of the treaty at issue, and in those cases the Court adhered to the original meaning (to this effect, see, for example, the Judgment of 27 August 1952 in the case concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America) (I.C.J. Reports 1952, p. 176), on the question of the meaning of “dispute” in the context of a treaty concluded in 1836, the Court having determined the meaning of this term in Morocco when the treaty was concluded; the Judgment of 13 December 1999 in the case concerning Kasikili/Sedudu Island (Botswana/ Namibia) (I.C.J. Reports 1999 (II), p. 1062, para. 25) in respect of the meaning of “centre of the main channel” and “thalweg” when the Anglo-German Agreement of 1890 was concluded)”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 242, para. 63. Previous: Rights of Nationals of the United States of America in Morocco (France v. United States of America) (I.C.J. Reports 1952, p. 176) Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J. Reports 1999 (II), p. 1062, para. 25.

Interpretation – Treaties – Intention of parties “The Court’s task is accordingly to determine where the drafters of the ThomsonMarchand Declaration intended the boundary to run in this area when they described it as following the course of a river called “Kohom” ”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 366, para. 100.

Intention of the Parties “While the historical reasons for the initial appearance of the Commonwealth reservation in the declarations of certain States under the optional clause may have changed or disappeared, such considerations cannot, however, prevail over the intention of a declarant State, as expressed in the actual text of its declaration. India has repeatedly made clear that it wishes to limit in this manner the scope ratione personae of its acceptance of the Court’s jurisdiction. Whatever may have been the reasons for this limitation, the Court is bound to apply it”. Aerial Incident of 10 August 1999(Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 31, para. 44.

938

Sources and Rules of International Law Intention of the Parties

“The Court would first observe that, in terms of geographical theory, there exists no definition enabling the principal source of a river to be identified with full certainty where that river has several sources. However, the task of the Court is not to identify the “geographical” source of the Tsikakiri, but to identify the source through which the drafters of the Thomson-Marchand Declaration intended that the boundary should pass”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 374 para. 128.

Preparatory works “Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of its object and purpose, it does not consider it necessary to resort to the preparatory work in order to determine the meaning of that Article. The Court would nevertheless point out that the preparatory work of the Statute does not preclude the conclusion that orders under Article 41 have binding force”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 503, para. 104.

Preparatory works Consequently, the drafting history may be seen as supporting the conclusion reached by the Court in paragraph 167 above. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 117, para. 175.

Evolutionary Interpretation General Considerations – evolution of meaning of term “[T]here are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used – or some of them – a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law” (Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 242, para. 64)”.



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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 83, para. 204. Previous: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 242, para. 64.

General Considerations – evolution of meaning of term “The Court concludes from the foregoing that the terms by which the extent of Costa Rica’s right of free navigation has been defined, including in particular the term “comercio”, must be understood to have the meaning they bear on each occasion on which the Treaty is to be applied, and not necessarily their original meaning. Thus, even assuming that the notion of “commerce” does not have the same meaning today as it did in the mid-nineteenth century, it is the present meaning which must be accepted for purposes of applying the Treaty”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 244, para. 70.

Evolutionary interpretation “The Court does not agree with this second argument. It is true that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s conclusion. That may lead a court seised of a dispute, or the parties themselves, when they seek to determine the meaning of a treaty for purposes of good-faith compliance with it, to ascertain the meaning a term had when the treaty was drafted, since doing so can shed light on the parties’ common intention. The Court has so proceeded in certain cases requiring it to interpret a term whose meaning had evolved since the conclusion of the treaty at issue, and in those cases the Court adhered to the original meaning (to this effect, see, for example, the Judgment of 27 August 1952 in the case concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America) (I.C.J. Reports 1952, p. 176), on the question of the meaning of “dispute” in the context of a treaty concluded in 1836, the Court having determined the meaning of this term in Morocco when the treaty was concluded; the Judgment of 13 December 1999 in the case concerning Kasikili/Sedudu Island (Botswana/ Namibia) (I.C.J. Reports 1999 (II), p. 1062, para. 25) in respect of the meaning of “centre of the main channel” and “thalweg” when the Anglo-German Agreement of 1890 was concluded)”.

940

Sources and Rules of International Law

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 242, para. 63. Previous: Rights of Nationals of the United States of America in Morocco (France v. United States of America) (I.C.J. Reports 1952, p. 176) Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J. Reports 1999 (II), p. 1062, para. 25.

Evolutionary interpretation “It is founded on the idea that, where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 243, para. 66.

Restrictive interpretation – a priori “There are thus no grounds for supposing, a priori, that the words “librenavegación . . . con objetos de comercio” should be given a specially restrictive interpretation, any more than an extensive one”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 238, para. 48.

Restrictive interpretation – Sovereign powers of a state over its territory “While it is certainly true that limitations of the sovereignty of a State over its territory are not to be presumed, this does not mean that treaty provisions establishing such limitations, such as those that are in issue in the present case, should for this reason be interpreted a priori in a restrictive way. A treaty provision which has the purpose of limiting the sovereign powers of a State must be interpreted like any other provision of a treaty, i.e. in accordance with the intentions of its authors as reflected by the text of the treaty and the other relevant factors in terms of interpretation”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 237, para. 48.



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Authentic Interpretation Authentic interpretation – Discrepancy between text of two languages – Arabic and English “Furthermore, the Court notes that there is a discrepancy between the English and Arabic texts of the statement produced before the Court, both of which were signed by the witness; the Arabic version lacks any indication of the bearing on which the observed missile was travelling”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 189, para. 58.

Authentic texts “Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute “forms an integral part of the present Charter”. Under Article 111 of the Charter, the French and English texts of the latter are “equally authentic”. The same is equally true of the Statute”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 502, para. 101.

Authentic interpretation “In cases of divergence between the equally authentic versions of the Statute, neither it nor the Charter indicates how to proceed. In the absence of agreement between the parties in this respect, it is appropriate to refer to paragraph 4 of Article 33 of the Vienna Convention on the Law of Treaties, which in the view of the Court again reflects customary international law. This provision reads “when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 502, para. 101.

942

Sources and Rules of International Law Subsequent Practice of the Parties

Subsequent practice of the Parties – Determination of continuous commercial activity and effect of a particular action on source of commercial activity “As the Court noted in its 1996 Judgment, it was then not contested between the Parties (and is not now contested) that “oil exports from Iran to the United States were -to some degree -ongoing at least until after the destruction of the first set of oil platforms”, i.e., 19 October 1987 (I.C.J. Reports 1996 (II), p. 818, para. 44)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 204, para. 91.

Subsequent practice of the Parties “For that purpose, it was not called upon to decide whether the actions of the United States did in fact interfere with freedom of commerce between the territories of the Parties, but only whether, as stated in the Judgment, the lawfulness of those actions could be evaluated in relation to Article X, paragraph I (ibid., p. 820, para. 51). It has been suggested by the United States in its written pleadings that that Article does not in fact create specific legal obligations relevant to Iran’s claims, but is merely an “aspirational” provision, but this view, which the United States did not press during the oral proceedings, does not seem to the Court to be consistent either with the structure of the 1955 Treaty or with the Court’s 1996 Judgment”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 200, para. 81.

Validity “The Court considers that the Maroua Declaration constitutes an international agreement concluded between States in written form and tracing a boundary; it is thus governed by international law and constitutes a treaty in the sense of the Vienna Convention on the Law of Treaties (see Art. 2, para. 1), to which Nigeria has been a party since 1969 and Cameroon since 1991, and which in any case reflects customary international law in this respect”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 429 para. 263.



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Extinction and Suspension Exitnction and Suspension “Consequently, the Court finds that Argentina, in accepting the creation of the GTAN, did not give up, as Uruguay claims, the other procedural rights belonging to it by virtue of the 1975 Statute, nor the possibility of invoking Uruguay’s responsibility for any breach of those rights. Argentina did not, in the agreement to set up the GTAN, “effect a clear and unequivocal waiver” of its rights under the 1975 Statute (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 247, para. 13). Nor did it consent to suspending the operation of the procedural provisions of the 1975 Statute. Indeed, under Article 57 of the Vienna Convention on the Law of Treaties of 23 May 1969, concerning “[s]uspension of the operation of a treaty”, including, according to the International Law Commission’s commentary, suspension of “the operation of . . . some of its provisions” (Yearbook of the International Law Commission, 1966, Vol. II, p. 251), suspension is only possible “in conformity with the provisions of the treaty” or “by consent of all the parties”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 66, para. 141. Previous: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 247, para. 13.

Effects – Efficacy – Non-party to a treaty circumstance and pre-dating of the drafting of the treaty no preventing effect on the court from applying the principles of interpretation “Consequently, neither the circumstance that Nicaragua is not a party to the Vienna Convention on the Law of Treaties nor the fact that the treaty which is to be interpreted here considerably pre-dates the drafting of the said Convention has the effect of preventing the Court from referring to the principles of interpretation set forth in Articles 31 and 32 of the Vienna Convention”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 237, para. 47.

Relationship between treaties and domestic law – Validity and effect of decret-loi in national and international legal order “The validity of this décret-loi under Rwandan domestic law has been denied by Rwanda. However, in the Court’s view the question of the validity and effect of

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the décret-loi within the domestic legal order of Rwanda is different from that of its effect within the international legal order. Thus a clear distinction has to be drawn between a decision to withdraw a reservation to a treaty taken within a State’s domestic legal order and the implementation of that decision by the competent national authorities within the international legal order, which can be effected only by notification of withdrawal of the reservation to the other States parties to the treaty in question. It is a rule of international law, deriving from the principle of legal security and well established in practice, that, subject to agreement to the contrary, the withdrawal by a contracting State of a reservation to a multilateral treaty takes effect in relation to the other contracting States only when they have received notification thereof. This rule is expressed in Article 22, paragraph 3 (a), of the Vienna Convention on the Law of Treaties, which provides as follows: “3. Unless the Treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another Contracting State only when notice of it has been received by that State.” Article 23, paragraph 4, of that same Convention further provides that “[t]he withdrawal of a reservation or of an objection to a reservation must be formulated in writing”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 25, para. 41.

Others General considerations – Interlinking of provisions located in different parts of the treaty “On the other hand, the Court observes that there is a certain relationship between Articles 2 and 17 in the sense that the reasons that may justify refusals of mutual assistance which are to be given under Article 17 include the grounds specified in Article 2. At the same time, Articles 2 and 17 provide for distinct obligations, and the terms of the Convention do not suggest that recourse to Article 2 is dependent upon compliance with Article 17. Further, had it been so intended by the Parties, this would have been expressly stipulated in the Convention”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 232, para. 156.

Effect of not established peremptory norm of general international law on state’s consent to jurisdiciton “The fact that a dispute concerns non-compliance with a peremptory norm of general international law cannot suffice to found the Court’s jurisdiction to



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entertain such a dispute, and there exists no peremptory norm requiring States to consent to such jurisdiction in order to settle disputes relating to the Convention on Racial Discrimination”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 34, para. 73.

Interpretation – erga omnes character of a norm and rule of consent to jurisdiction The Court observes, however, as it has already had occasion to emphasize, that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things” (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29), and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 32, para. 64. Previous: East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29.

Interpretation – Peremptory norm of general international law and rule of consent to jurisdiction “The same applies to the relationship between peremptory norms of general international law ( jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 32, para. 64.

International Personality Legal personality “The Court observes that, like any international organization with legal personality, CARU is entitled to exercise the powers assigned to it by the 1975 Statute

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and which are necessary to achieve the object and purpose of the latter, namely, “the optimum and rational utilization of the River Uruguay” (Article 1). As the Court has pointed out, “[i]nternational organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them” (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 (I), p. 78, para. 25)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 53, para. 89. Previous: Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 (I), p.78, para. 25).

International Relations of the State Principles of diplomatic and consular law – Vienna Convention on Consular Relations – Diplomatic Privileges and Immunities-immunity from civil and criminal jurisdiction to high-ranking officials “The Court has already recalled in the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) case “that in international law it is firmly established that . . . certain holders of high-ranking office in a State, such as the Head of State . . . enjoy immunities from jurisdiction in other States, both civil and criminal” ( Judgment, I.C.J. Reports 2002, pp. 20–21, para. 51). A Head of State enjoys in particular “full immunity from criminal jurisdiction and inviolability” which protects him or her “against any act of authority of another State which would hinder him or her in the performance of his or her duties” (ibid., p. 22, para. 54). Thus the determining factor in assessing whether or not there has been an attack on the immunity of the Head of State lies in the subjection of the latter to a constraining act of authority”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 236, para. 170. Previous: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium, Judgment, I.C.J. Reports 2002, pp. 20–21, para. 51.



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Principles of diplomatic and consular law – Diplomatic privileges and immunities – Inviolability of members of a diplomatic mission and premises “In the case concerning United States Diplomatic and Consular Staff in Tehran, the Court emphasized that “[e]ven in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, . . . must be respected by the receiving State” ( Judgment, I.C.J. Reports 1980, p. 40, para. 86)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 274, para. 323.

Principles of diplomatic and consular law – Diplomatic privileges and immunities – Courtesy due to a foreign Head of State “The Court considers that by inviting a Head of State to give evidence simply through sending him a facsimile and by setting him an extremely short deadline without consultation to appear at her office, Judge Clément failed to act in accordance with the courtesies due to a foreign Head of State”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 237, para. 172.

Principles of diplomatic and consular law – Vienna Convention on Diplomatic Relations – Application to Heads of State “The Court recalls that the rule of customary international law reflected in Article 29 of the Vienna Convention on Diplomatic Relations, while addressed to diplomatic agents, is necessarily applicable to Heads of State. This provision reads as follows: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” . . . This provision translates into positive obligations for the receiving State as regards the actions of its own authorities, and into obligations of prevention as regards possible acts by individuals. In particular, it imposes on receiving States the obligation to protect the honour and dignity of Heads of State, in connection with their inviolability”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 238, para. 174.

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Sources and Rules of International Law Principles of diplomatic and consular law – Vienna Convention on Diplomatic Relations – Breach of obligations under a treaty and violation of international obligation of a state

“Djibouti has claimed that the communication to Agence France-Presse, in breach of the confidentiality of the investigation, of information concerning the witness summons addressed to its Head of State, is to be regarded as an attack on his honour or dignity. The Court observes that if it had been shown by Djibouti that this confidential information had been passed from the offices of the French judiciary to the media, such an act could have constituted, in the context of an official visit by the Head of State of Djibouti to France, not only a violation of French law, but also a violation by France of its international obligations”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 238, para. 175.

Principles of diplomatic and consular law – Vienna Convention on Diplomatic Relations – Non-applicability of personnel falling under the Convention on Special Missions of 1969 “The Court notes first that there are no grounds in international law upon which it could be said that the officials concerned were entitled to personal immunities, not being diplomats within the meaning of the Vienna Convention on Diplomatic Relations of 1961, and the Convention on Special Missions of 1969 not being applicable in this case”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 243, para. 194.

Principles of diplomatic and consular law – Vienna Convention on Privileges and Immunities and Vienna Convention on Diplomatic Relations – Procedure to claim immunity “The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned. This would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further, the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for any internationally wrongful act in issue committed by such organs”.



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Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 244, para. 196.

Vienna Convention on the Law of Treaties – Position of Head of State, Head of Government and Minister of Foreign Affairs “In this connection, the Court observes that, in accordance with its consistent jurisprudence (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 269–270, paras. 49–51; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622, para. 44; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, pp. 21–22, para. 53; see also Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 71), it is a well-established rule of international law that the Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of the said State, of unilateral acts having the force of international commitments. The Court moreover recalls that, in the matter of the conclusion of treaties, this rule of customary law finds expression in Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties, which provides that “[i]n virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 46.

Vienna Convention on the Law of Treaties – Modern international relations and state practice – Position of holders of technical ministerial portfolios “The Court notes, however, that with increasing frequency in modern international relations other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even of certain officials”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 47.

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Principles of diplomatic and consular law – Vienna Convention on the Law of Treaties – Position and effect of acts of Minister of Justice for a state “It is the Court’s view that the possibility cannot be ruled out in principle that a Minister of Justice may, under certain circumstances, bind the State he or she represents by his or her statements. The Court cannot therefore accept Rwanda’s argument that Ms Mukabagwiza could not, by her statement, bind the Rwandan State internationally, merely because of the nature of the functions that she exercised”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 27, para. 46.

Treaty – Vienna Convention on the Law of Treaties – Powers of Heads of State for conclusion of a treaty “The Court cannot accept Nigeria’s argument that Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties is solely concerned with the way in which a person’s function as a State’s representative is established, but does not deal with the extent of that person’s powers when exercising that representative function. The Court notes that the commentary of the International Law Commission on Article 7, paragraph 2, expressly states that “Heads of State . . . are considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty” (ILC Commentary, Art. 6 (of what was then the draft Convention), para. 4, Yearbook of the International Law Commission, 1966, Vol. II, p. 193)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 430, para. 265.

Treaty – Statement of Head of State – Commitment of obligation – Effect on other party “In this case the Head of State of Nigeria had in August 1974 stated in his letter to the Head of State of Cameroon that the views of the Joint Commission “must be subject to the agreement of the two Governments”. However, in the following paragraph of that same letter, he further indicated: “It has always been my belief that we can, both, together re-examine the situation and reach an appropriate and acceptable decision on the matter.” Contrary to Nigeria’s contention, the Court considers that these two statements, read together, cannot be regarded as a specific warning to Cameroon that the Nigerian Government would not be bound by any commitment entered into by the Head of State”.



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Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 430, para. 266.

Sources and Rules of International Law – Treaties – Elements and Time – Factor Determining the Fulfilment of the Procedural Obligations under Consular Laws “The Court notes that Article 36, paragraph 1 (b), spells out the obligations the receiving State has towards the detained person and the sending State. It provides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the individual’s detention “without delay”. It provides further that any communication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State “without delay”. Significantly, this subparagraph ends with the following language: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph” (emphasis added). Moreover, under Article 36, paragraph 1 (c), the sending State’s right to provide consular assistance to the detained person may not be exercised “if he expressly opposes such action”. The clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand (see Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8; Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48; Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51). Based on the text of these provisions, the Court concludes that Article 36, paragraph I, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77. Previous: Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J. Series B, No.7, p. 20. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8. Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51.

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Sources and Rules of International Law Treaties – Jurisdiction of the state based on nationality – Diplomatic protection – General Observations – Means of Exercise

“Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

Treaties – Jurisdiction of the state based on nationality – Diplomatic protection – General Observations “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

Treaties – Jurisdiction of the state based on nationality – Diplomatic protection – Entitlement of the right of protection “Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.



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Chapter II The International Society The International Society – States – Jurisdiction of the State based on nationality – Diplomatic and Consular Protection – Title of Exercise – Nationality Tie “The Court notes that Article 36, paragraph 1 (b), spells out the obligations the receiving State has towards the detained person and the sending State. It provides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the individual’s detention “without delay”. It provides further that any communication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State “without delay”. Significantly, this subparagraph ends with the following language: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph” (emphasis added). Moreover, under Article 36, paragraph 1 (c), the sending State’s right to provide consular assistance to the detained person may not be exercised “if he expressly opposes such action”. The clarity of these provisions, viewed in their context, admits of no doubt. It follows, as has been held on a number of occasions, that the Court must apply these as they stand (see Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No. 7, p. 20; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8; Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51). Based on the text of these provisions, the Court concludes that Article 36, paragraph I, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77. Previous: Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J. Series B, No. 7, p. 20. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8. Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51.

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Sources and Rules of International Law The International Society – States: Jurisdiction of the State based on nationality – Diplomatic and Consular Protection – Title of Exercise – Collective Consequential Effect of rights of individual and state

“The Court cannot accept the argument of the United States which proceeds, in part, on the assumption that paragraph 2 of Article 36 applies only to the rights of the sending State and not also to those of the detained individual. The Court has already determined that Article 36, paragraph I, creates individual rights for the detained person in addition to the rights accorded the sending State, and that consequently the reference to “rights” in paragraph 2 must be read as applying not only to the rights of the sending State, but also to the rights of the detained individual (see paragraph 77 above)”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 497, para. 89.

The International Society – States – Jurisdiction of the State based on nationality – Diplomatic and Consular Protection – Title of Exercise – Procedural default Rule “Turning now to the “procedural default” rule, the application of which in the present case Germany alleges violated Article 36, paragraph 2, the Court emphasizes that a distinction must be drawn between that rule as such and its specific application in the present case. In itself, the rule does not violate Article 36 of the Vienna Convention. The problem arises when the procedural default rule does not allow the detained individual to challenge a conviction and sentence by claiming, in reliance on Article 36, paragraph I, of the Convention, that the competent national authorities failed to comply with their obligation to provide the requisite consular information “without delay”, thus preventing the person from seeking and obtaining consular assistance from the sending State”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 497, para. 90.

The International Society – States – Jurisdiction of the State based on nationality – Diplomatic and Consular Protection – Title of Exercise – Link between the implementation of the procedural default rule in specific way and violation of obligation “As a result, although United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards, the procedural default rule prevented them from attaching any legal significance to the fact, inter alia, that the violation of the rights set forth in Article 36, paragraph I, prevented Germany, in a timely fashion,



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from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention. Under these circumstances, the procedural default rule had the effect of preventing “full effect [from being] given to the purposes for which the rights accorded under this article are intended”, and thus violated paragraph 2 of Article 36”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 497, para. 91.

Sub Chapter I States Territorial sovereignty – Meaning of right of free navigation – Context “Thus, the language found in Article VI means that the right of free navigation granted to Costa Rica in that provision applies exclusively within the ambit of navigation “for the purposes of commerce” and ceases to apply beyond that ambit; the bounds of which it is now for the Court to determine. This determination is without effect on the existence of any right of navigation which Costa Rica may enjoy pursuant to provisions other than Article VI”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 241, para. 61.

Right of free navigation not to be prejudicial to the key prerogatives of territorial sovereignty “A simple reading of Article VI shows that the Parties did not intend to establish any hierarchy as between Nicaragua’s sovereignty over the river and Costa Rica’s right of free navigation, characterized as “perpetual”, with each of these affirmations counter-balancing the other. Nicaragua’s sovereignty is affirmed only to the extent that it does not prejudice the substance of Costa Rica’s right of free navigation in its domain, the establishment of which is precisely the point at issue; the right of free navigation, albeit “perpetual”, is granted only on condition that it does not prejudice the key prerogatives of territorial sovereignty”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 237, para. 48.

Meaning of International River – Absence of treaty provision “Indeed, even if categorization as an “international river” would be legally relevant in respect of navigation, in that it would entail the application of rules of customary international law to that question, such rules could only be operative,

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at the very most, in the absence of any treaty provisions that had the effect of excluding them, in particular because those provisions were intended to define completely the régime applicable to navigation, by the riparian States on a specific river or a section of it”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 233, para. 35.

Sovereignty of a party over territory and obligations of other party with regards to subsequent steps once the claim is decided in favour of the other party – Example “The Court has already had occasion to deal with situations of this kind. In the case concerning the Temple of Preah Vihear, it held that the temple was situated on territory falling under the sovereignty of Cambodia. From this it concluded that “Thailand [was] under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory” (Merits, Judgment, I.C.J. Reports 1962, p. 37)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 451, para. 313. Previous: Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 37.

Sovereignty of a party over territory and obligations of other party with regards to subsequent steps once the claim is decided in favour of the other party – Example “More recently, in the Territorial Dispute (Libyan Arab Jamahiriya/Chad), the Court fixed the boundary between those two States along a course which allocated to Chad territories in which Libya had set up a civil administration and stationed military forces. Following that Judgment of 3 February 1994, the two States on 4 April 1994 signed an agreement with a view to implementing the Judgment; that agreement provided for Libya’s evacuation of the territories in question, to be monitored by a group of observers to be established by the Security Council. The evacuation was completed on 31 May 1994”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 451, para. 313.



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Sovereignty of a party over territory and obligations of other party with regards to subsequent steps once the claim is decided in favour of the other party – Example “The Court notes that Nigeria is under an obligation in the present case expeditiously and without condition to withdraw its administration and its military and police forces from that area of Lake Chad which falls within Cameroon’s sovereignty and from the Bakassi Peninsula”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 451, para. 314.

Sovereignty of a party over territory and obligations of other party with regards to subsequent steps once the claim is decided in favour of the other party – Example “The Court further observes that Cameroon is under an obligation expeditiously and without condition to withdraw any administration or military or police forces which may be present in areas along the land boundary from Lake Chad to the Bakassi Peninsula which pursuant to the present Judgment fall within the sovereignty of Nigeria. Nigeria has the same obligation in regard to any administration or military or police forces which may be present in areas along the land boundary from Lake Chad to the Bakassi Peninsula which pursuant to the present Judgment falls within the sovereignty of Cameroon”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 451, para. 314.

Sovereignty of a party over territory and respect for and obligations of other party with regards to subsequent steps once the claim is decided in favour of the other party – Example “However, the Judgment delivered today specifies in definitive and mandatory terms the land and maritime boundary between the two States. With all uncertainty dispelled in this regard, the Court cannot envisage a situation where either Party, after withdrawing its military and police forces and administration from the other’s territory, would fail to respect the territorial sovereignty of that Party. Hence Cameroon’s submissions on this point cannot be upheld”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 452, para. 318.

958

Sources and Rules of International Law Effectivités – contra legem

“The Court observes, however, that in none of these cases were the acts referred to acts contra legem; those precedents are therefore not relevant. The legal question of whether effectivites suggest that title lies with one country rather than another is not the same legal question as whether such effectivites can serve to displace an established treaty title. As the Chamber of the Court made clear in the Frontier Dispute (Burkina Faso/Republic of Mali) case, where there is a conflict between title and effectivités, preference will be given to the former (I.C.J. Reports 1986, Judgment, pp. 586–587, para. 63)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 415, para. 223. Previous: Frontier Dispute (Burkina Faso/Republic of Mali, I.C.J. Reports 1986, Judgment, pp. 586–587, para. 63.

Effectivités – title “The Court observes, however, that in none of these cases were the acts referred to acts contra legem; those precedents are therefore not relevant. The legal question of whether effectivites suggest that title lies with one country rather than another is not the same legal question as whether such effectivites can serve to displace an established treaty title. As the Chamber of the Court made clear in the Frontier Dispute (Burkina Faso/Republic of Mali) case, where there is a conflict between title and effectivites, preference will be given to the former (I.C.J. Reports 1986, Judgment, pp. 586–587, para. 63)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 415, para. 223. Previous: Frontier Dispute (Burkina Faso/Republic of Mali, I.C.J. Reports 1986, Judgment, pp. 586–587, para. 63.

Effectivités – Preference to be given to the holder of the title “The Court finds that the above events, taken together, show that there was no acquiescence by Cameroon in the abandonment of its title in the area in favour of Nigeria. Accordingly, the Court concludes that the situation was essentially one where the effectivités adduced by Nigeria did not correspond to the law, and that accordingly “preference should be given to the holder of the title” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 587, para. 63)”.



Sources and Rules of International Law

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Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 354, para. 70. Previous: Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 587, para. 63.

Title – Derivative roots of title “The Court points out that these concepts also found expression in the Western Sahara Advisory Opinion. There the Court stated that in territories that were not terra nullius, but were inhabited by tribes or people having a social and political organization, “agreements concluded with local rulers . . . were regarded as derivative roots of title” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80). Even if this mode of acquisition does not reflect current international law, the principle of intertemporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today, in the present dispute”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 405, para. 205.

Title – Derivative roots of title – Principle of inter-temporal law “The Court points out that these concepts also found expression in the Western Sahara Advisory Opinion. There the Court stated that in territories that were not terra nullius, but were inhabited by tribes or people having a social and political organization, “agreements concluded with local rulers . . . were regarded as derivative roots of title” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80). Even if this mode of acquisition does not reflect current international law, the principle of inter-temporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today, in the present dispute”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 405, para. 205.

Legal relationship between effectivités and titles “The Court has already ruled on a number of occasions on the legal relationship between “effectivités” and titles. In the Frontier Dispute (Burkina Faso/Republic of Mali) case, it pointed out that in this regard “a distinction must be drawn among several eventualities”, stating inter alia, that: “Where the act does not correspond

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to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration.” (I.C.J. Reports 1986, p. 587, para. 63; see also Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment, I.C.J. Reports 1994, p. 38, paras. 75–76.)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 353, para. 68. Previous: Frontier Dispute (Burkina Faso/Republic of Mali) I.CJ. Reports 1986, p. 587, para. 63. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 38, paras. 75–76.

Acquiescence in territory – Establishment of a change in treaty title “Hence the conduct of Cameroon in that territory has pertinence only for the question of whether it acquiesced in the establishment of a change in treaty title, which cannot be wholly precluded as a possibility in law (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, pp. 408–409, para. 80)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 353, para. 68. Previous: Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, pp. 408–409, para. 80.

Treaties – Protectorate treaties – Treaties for cession “The choice of a protectorate treaty by Great Britain was a question of the preferred manner of rule. Elsewhere, and specifically in the Lagos region, treaties for cession of land were being entered into with local rulers”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 405, para. 206.

International protectorate character “The Court notes that a characteristic of an international protectorate is that of ongoing meetings and discussions between the protecting Power and the Rulers of the Protectorate”.



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961

Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 406, para. 207.

Conversion of mandate into trusteeship and effect on territorial situation “When, after the Second World War and the establishment of the United Nations, the mandate was converted to a trusteeship, the territorial situation remained exactly the same. The “as if ” provision continued in place, and again the Administering Authority had no authority unilaterally to alter the boundaries of the trusteeship territory. Thus for the entire period from 1922 until 1961 (when the Trusteeship was terminated), Bakassi was comprised within British Cameroon. The boundary between Bakassi and Nigeria, notwithstanding the administrative arrangements, remained an international boundary”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 407, para. 210.

Oil licensing – Not a cession of territory “It is true, as Nigeria insists, that oil licensing “is certainly not a cession of territory”. The Court finds, however, that the geographic pattern of the licensing is consistent with the understanding of the Parties, evidenced elsewhere, as to pre-existing Cameroon title in Bakassi. Nor can this striking consistency (save for a very few exceptions) be explained by the contention that the Parties simply chose to deal with matters of oil exploitation in a manner wholly unrelated to territorial title”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 410, para. 213.

Oil exploration – Territorial title “It is true, as Nigeria insists, that oil licensing “is certainly not a cession of territory”. The Court finds, however, that the geographic pattern of the licensing is consistent with the understanding of the Parties, evidenced elsewhere, as to pre-existing Cameroon title in Bakassi. Nor can this striking consistency (save for a very few exceptions) be explained by the contention that the Parties simply chose to deal with matters of oil exploitation in a manner wholly unrelated to territorial title”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 410, para. 213.

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No definition of principal source of river where river has several sources “The Court would first observe that, in terms of geographical theory, there exists no definition enabling the principal source of a river to be identified with full certainty where that river has several sources. However, the task of the Court is not to identify the “geographical” source of the Tsikakiri, but to identify the source through which the drafters of the Thomson-Marchand Declaration intended that the boundary should pass”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 374 para. 128.

Indicative examples of acts a titre de souverain “Some of these activities – the organization of public health and education facilities, policing, the administration of justice – could normally be considered to be acts a titre de souverain”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 353, para. 67.

Delimitation Cartographic materials “On Malaysia’s first contention it does appear to the Court that the annotations are clear and support Singapore’s position. On the second point, the Court sees strength in Singapore’s more limited argument that the maps give a good indication of Malaysia’s official position rather than being creative of title. On the third there is authority for the proposition that admissions may appear in other circumstances (e.g. Frontier Dispute (Benin/Niger), I.C.J. Report 2005, p. 119, para. 44). The disclaimer, the subject of the fourth Malaysian contention, says that the map must not be considered an authority on the delimitation of international or other boundaries. (The 1974 formula is a little different.) The Court is not here concerned with a boundary but with a distinct island and in any event as the Boundary Commission in the Eritrea/Ethiopia case said: “The map still stands as a statement of geographical fact, especially when the State adversely affected has itself produced and disseminated it, even against its own interest.” (Decision regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia, 13 April 2002, p. 28, para. 3.28.)”.



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Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 95, para. 271. Previous: Frontier Dispute (Benin/Niger), I.C.J. Report 2005, p. 119, para. 44.

Difference between the delimitation and demarcation “The delimitation of a boundary consists in its “definition”, whereas the demarcation of a boundary, which presupposes its prior delimitation, consists of operations marking it out on the ground”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 359, para. 83.

Maritime delimitation – Historical consolidation as a basis of title “The Court observes in this respect that in the Fisheries (United Kingdom v. Norway) case (I.C.J. Reports 1951, p. 130) it had referred to certain maritime delimitation decrees promulgated by Norway almost a century earlier which had been adopted and applied for decades without any opposition. These decrees were said by the Court to represent “a well defined and uniform system . . . which would reap the benefit of general toleration, the basis of an historical consolidation which would make it enforceable as against all States” (ibid., p. 137). The Court notes, however, that the notion of historical consolidation has never been used as a basis of title in other territorial disputes, whether in its own or in other case law”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 352, para. 65. Previous: Fisheries (United Kingdom v. Norway) case (I.C.J. Reports 1951, p. 130).

Maritime delimitation – Value of the theory of historical consolidation “The Court notes that the theory of historical consolidation is highly controversial and cannot replace the established modes of acquisition of title under international law, which take into account many other important variables of fact and law”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 352, para. 65.

964

Sources and Rules of International Law Maritime delimitation – Historical consolidation – No land occupation over an established treaty title

“It further observes that nothing in the Fisheries Judgment suggests that the “historical consolidation” referred to, in connection with the external boundaries of the territorial sea, allows land occupation to prevail over an established treaty title”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 352, para. 65.

Maritime delimitation – Article 59 of the Statute protection insufficient “The Court considers that, in particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 421, para. 238.

Legal concept of relevant area and disproportionality test “Secondly, the relevant area is pertinent to checking disproportionality. This will be done as the final phase of the methodology. The purpose of delimitation is not to apportion equal shares of the area, nor indeed proportional shares. The test of disproportionality is not in itself a method of delimitation. It is rather a means of checking whether the delimitation line arrived at by other means needs adjustment because of a significant disproportionality in the ratios between the maritime areas which would fall to one party or other by virtue of the delimitation line arrived at by other means, and the lengths of their respective coasts”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 99, para. 110.

Delimitation of maritime boundary – Methodology of determination “The Chamber formed by the Court in the case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) noted that the determination of such a line “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of [the zones] to the detriment of the other, and at



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the same time is such as to be equally suitable to the division of either of them” (I.C.J. Reports 1984, p. 327, para. 194)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 441, para. 287. Previous: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/ United States of America), I.C.J. Reports 1984, p. 327, para. 194.

Maritime delimitation – Multi-purpose delimitation “The Chamber then added that “preference w[ould] henceforth . . . be given to criteria that, because of their more neutral character, are best suited for use in a multi-purpose delimitation” (I.C.J. Reports 1984, p. 327, para. 194). Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 441, para. 287.

Relevant area – Purpose – Equitable delimitation versus equal apportionment of maritime areas “The Court further observes that for the purposes of this final exercise in the delimitation process the calculation of the relevant area does not purport to be precise and is approximate. The object of delimitation is to achieve a delimitation that is equitable, not an equal apportionment of maritime areas (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 18; Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 67, para. 64)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 100, para. 111. Previous: North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 18. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 67, para. 64).

Relevant area – Inclusion of temporary areas – Third party entitlement “However where areas are included solely for the purpose of approximate identification of overlapping entitlements of the Parties to the case, which may

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be deemed to constitute the relevant area (and which in due course will play a part in the final stage testing for disproportionality), third party entitlements cannot be affected”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 100, para. 114.

Process of delimitation – Median line and equidistance line “These separate stages, broadly explained in the case concerning Continental Shelf (Libyan Arab Jamahiriya/Malta) ( Judgment, I.C.J. Reports 1985, p. 46, para. 60), have in recent decades been specified with precision. First, the Court will establish a provisional delimitation line, using methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place. So far as delimitation between adjacent coasts is concerned, an equidistance line will be drawn unless there are compelling reasons that make this unfeasible in the particular case (see Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 745, para. 281). So far as opposite coasts are concerned, the provisional delimitation line will consist of a median line between the two coasts. No legal consequences flow from the use of the terms “median line” and “equidistance line” since the method of delimitation is the same for both”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 116. Previous: Continental Shelf (Libyan Arab Jamahiriya/Malta) ( Judgment, I.C.J. Reports 1985, p. 46, para. 60. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 745, para. 281).

Construction of equidistance and median lines – Physical geography and the most seaward points of the two coasts dependent factors “Equidistance and median lines are to be constructed from the most appropriate points on the coasts of the two States concerned, with particular attention being paid to those protuberant coastal points situated nearest to the area to the delimited. The Court considers elsewhere (see paragraphs 135–137 below) the extent to which the Court may, when constructing a single-purpose delimitation line, deviate from the base points selected by the Parties for their territorial seas. When construction of a provisional equidistance line between adjacent States is called for, the Court will have in mind considerations relating to both Parties’ coastlines when choosing its own base points for this purpose. The line thus



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adopted is heavily dependent on the physical geography and the most seaward points of the two coasts”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 117.

Process of provisional constructing equidistance line “In keeping with its settled jurisprudence on maritime delimitation, the first stage of the Court’s approach is to establish the provisional equidistance line. At this initial stage of the construction of the provisional equidistance line the Court is not yet concerned with any relevant circumstances that may obtain and the line is plotted on strictly geometrical criteria on the basis of objective data”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 118.

Equitable principles/relevant circumstances method – Equitable result “The course of the final line should result in an equitable solution (Articles 74 and 83 of UNCLOS). Therefore, the Court will at the next, second stage consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288). The Court has also made clear that when the line to be drawn covers several zones of coincident jurisdictions, “the so-called equitable principles/relevant circumstances method may usefully be applied, as in these maritime zones this method is also suited to achieving an equitable result” (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 741, para. 271)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 120. Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 741, para. 271.

968

Sources and Rules of International Law Provisional equidistance line – Final equitable outcome – Necessity to maintain that no great disproportionality is evident by comparison to the coastal lengths

“Finally, and at a third stage, the Court will verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line (see paragraphs 214–215). A final check for an equitable outcome entails a confirmation that no great disproportionality of maritime areas is evident by comparison to the ratio of coastal lengths”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 103, para. 122.

Sharing out of the area – Consequence of delimitation and not vice versa “This is not to suggest that these respective areas should be proportionate to coastal lengths – as the Court has said “the sharing out of the area is therefore the consequence of the delimitation, not vice versa” (Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 67, para. 64)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 103, para. 122. Previous: Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 67, para. 64.

Base-lines – Meaning of important terminology to determine the base line “These are generally installations which allow ships to be harboured, maintained or repaired and which permit or facilitate the embarkation and disembarkation of passengers and the loading or unloading of goods”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 106, para. 133.



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Base-lines – Determination of baseline for the measurement purpose of breadth of continental shelf and the EEZ and identification of base points for drawing equidistance/median line for delimitation of continental shelf and the EEZ – Two different issues “The Court observes that the issue of determining the baseline for the purpose of measuring the breadth of the continental shelf and the exclusive economic zone and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting the continental shelf and the exclusive economic zone between adjacent/ opposite States are two different issues. In the first case, the coastal State, in conformity with the provisions of UNCLOS (Articles 7, 9, 10, 12 and 15), may determine the relevant base points. It is nevertheless an exercise which has always an international aspect (see Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 132). In the second case, the delimitation of the maritime areas involving two or more States, the Court should not base itself solely on the choice of base points made by one of those Parties. The Court must, when delimiting the continental shelf and exclusive economic zones, select base points by reference to the physical geography of the relevant coasts”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 108, para. 137. Previous: Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 132.

Principles and rules of international law – Provisional equidistance line – Relevant circumstances – Process leading to equitable solution “As the Court indicated above (paragraphs 120–121), once the provisional equidistance line has been drawn, it shall “then [consider] whether there are factors calling for the adjustment or shifting of that line in order to achieve an ‘equitable result’” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288). Such factors have usually been referred to in the jurisprudence of the Court, since the North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/Netherlands) cases, as the relevant circumstances ( Judgment, I.C.J. Reports 1969, p. 53, para. 53). Their function is to verify that the provisional equidistance line, drawn by the geometrical method from the determined base points on the coasts of the Parties is not, in light of the particular circumstances of the case, perceived as inequitable. If such would be the case, the Court should adjust the line in order to achieve the “equitable solution” as required by Articles 74, paragraph 1, and 83, paragraph 1, of UNCLOS”.

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Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 112, para. 155. Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288. North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 53, para. 53.

Principles and rules of international law – Maritime delimitation – equidistance line represents equitable result “The Court accordingly decides that the equidistance line represents an equitable result for the delimitation of the area in respect of which it has jurisdiction to give a ruling”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 448, para. 306.

Function of delimitation different from apportionment of resources or areas “The Court observes that the respective length of coasts can play no role in identifying the equidistance line which has been provisionally established. Delimitation is a function which is different from the apportionment of resources or areas (see North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 18). There is no principle of proportionality as such which bears on the initial establishment of the provisional equidistance line”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 116, para. 163. Previous: North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 18.

Criteria and Factors Criteria and factors – Low-tide elevation “The Court notes that the issue of whether a low-tide elevation is susceptible of appropriation or not has come up in its jurisprudence in the past. Thus in the Qatar v. Bahrain case, the Court made the following observation: “a coastal State has sovereignty over low-tide elevations which are situated within its territorial



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sea, since it has sovereignty over the territorial sea itself . . . The decisive question for the present case is whether a State can acquire sovereignty by appropriation over a low-tide elevation situated within the breadth of its territorial sea when that same low-tide elevation lies also within the breadth of the territorial sea of another State.” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 101, para. 204.)”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 100, para. 295. Previous: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 101, para. 204.

Criteria and factors – Importance of minute part of a maritime feature above water at high tide “In the view of the Court, such a distortion, due to a maritime feature located well out to sea and of which at most a minute part is above water at high tide, would not lead to an equitable solution which would be in accord with all other relevant factors referred to above. In the circumstances of the case considerations of equity require that Fasht al Jarim should have no effect in determining the boundary line in the northern sector”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 115, para. 248.

Criteria and factors – Criteria for equidistance line to ensure equitableness “The Court recalls that in the Libyan Arab Jamahiriya/Malta case, referred to above, it stated: “the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain ‘islets, rocks and minor coastal projections’, to use the language of the Court in its 1969 Judgment [(case concerning North Sea Continental Shelf )]” (I.C.J. Reports 1985, p. 48, para. 64)”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 114, para. 246. Previous: North Sea Continental Shelf, Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 48, para. 64.

972

Sources and Rules of International Law Criteria and factors – Maritime delimitation – Limited utility of geographical peculiarities and Court’s discretion

“Here again, as the Court decided in the North Sea Continental Shelf cases, the Court is not required to take all such geographical peculiarities into account in order to adjust or shift the provisional delimitation line: “[ilt is therefore not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, of abating the effects of an incidental special feature from which an unjustifiable difference of treatment could result” (I.C.J. Reports 1969, p. 50, para. 91)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 295. Previous: North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 50, para. 91.

Criteria and factors – Maritime delimitation – Concavity as relevant circumstance “The Court does not deny that the concavity of the coastline may be a circumstance relevant to delimitation, as it was held to be by the Court in the North Sea Continental Shelf cases and as was also so held by the Arbitral Tribunal in the case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, decisions on which Cameroon relies. Nevertheless the Court stresses that this can only be the case when such concavity lies within the area to be delimited”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 445, para. 297.

Criteria and factors – No principle of proportionality bearing on the initial establishment of the provisional equidistance line “The Court observes that the respective length of coasts can play no role in identifying the equidistance line which has been provisionally established. Delimitation is a function which is different from the apportionment of resources or areas (see North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 18). There is no principle of proportionality as such which bears on the initial establishment of the provisional equidistance line”.



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Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 116, para. 163. Previous: North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para. 18.

Criteria and factors – Cession of existence of pearling industry – Impact on justification of shifting of maritime boundary “The Court first takes note of the fact that the pearling industry effectively ceased to exist a considerable time ago . . . The Court, therefore, does not consider the existence of pearling banks, though predominantly exploited in the past by Bahrain fishermen, as forming a circumstance which would justify an eastward shifting of the equidistance line as requested by Bahrain”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 112, para. 236.

Criteria and factors – Disparities in the length of coasts as a factor – Fact of geography – Effect on the adjustment of the provisional equidistance line “Where disparities in the lengths of coasts are particularly marked, the Court may choose to treat that fact of geography as a relevant circumstance that would require some adjustments to the provisional equidistance line to be made”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 116, para. 164.

Criteria and factors – Substantial difference in length of coastlines as a factor – Effect on the adjustment of the provisional delimitation line “In the case concerning Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), the Court acknowledged “that a substantial difference in the lengths of the parties’ respective coastlines may be a factor to be taken into consideration in order to adjust or shift the provisional delimitation line” ( Judgment, I.C.J. Report 2002, p. 446, para. 301; emphasis added), although it found that in the circumstances there was no reason to shift the equidistance line”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 116, para. 164.

974

Sources and Rules of International Law

Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), Judgment, I.C.J. Report 2002, p. 446, para. 301.

Criteria and factors – Use of proportionality as a method – Lack of state practice “Then it recalled its observation from the Continental Shelf (Libyan Arab Jamahiriya/Malta) case: “If such a use of proportionality were right, it is difficult indeed to see what room would be left for any other consideration; for it would be at once the principle of entitlement to continental shelf rights and also the method of putting that principle into operation. Its weakness as a basis of argument, however, is that the use of proportionality as a method in its own right is wanting of support in the practice of States, in the public expression of their views at (in particular) the Third United Nations Conference on the Law of the Sea, or in the jurisprudence.” ( Judgment, I.C.J. Reports 1985, p.45, para. 58)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 116, para. 166. Previous: Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 45, para. 58.

Applicable criteria, principles and rules of delimitation – Equitable principles/relevant circumstances “The Court has on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdictions is to be determined. They are expressed in the so-called equitable principles/relevant circumstances method. This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, their considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an “equitable result” ”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 441, para. 288.

Applicable criteria, principles and rules of delimitation – Equidistance principles/special circumstances “The Court has on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of



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coincident jurisdictions is to be determined. They are expressed in the so-called equitable principles/relevant circumstances method. This method, which is very similar to the equidistance/special circumstances method applicable in delimitation of the territorial sea, involves first drawing an equidistance line, their considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an “equitable result” ”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 441, para. 288.

Criteria and factors – Maritime delimitation – Not by direct division of disputed area proportional to the respective lengths of the coasts “[. . .] that to take into account the extent of the respective coasts of the Parties concerned does not in itself constitute either a criterion serving as a direct basis for a delimitation, or a method that can be used to implement such delimitation. The Chamber recognizes that this concept is put forward mainly as a means of checking whether a provisional delimitation established initially on the basis of other criteria, and by the use of a method which has nothing to do with that concept, can or cannot be considered satisfactory in relation to certain geographical features of the specific case, and whether it is reasonable or otherwise to correct it accordingly. The Chamber’s views on this subject may be summed up by observing that a maritime delimitation can certainly not be established by a direct division of the area in dispute proportional to the respective lengths of the coasts belonging to the parties in the relevant area, but it is equally certain that a substantial disproportion to the lengths of those coasts that resulted from a delimitation effected on a different basis would constitute a circumstance calling for an appropriate correction.” (Ibid., p. 323, para. 185; emphasis added.)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 117, para. 167.

Criteria and factors – More cautious treatment of resource-related criteria – Relevant circumstance “The Court does not see, in the circumstances of the present case, any particular role for the State activities invoked above in this maritime delimitation. As the Arbitral Tribunal in the case between Barbados and Trinidad and Tobago observed, “[r]esource-related criteria have been treated more cautiously by the decisions of international courts and tribunals, which have not generally applied this factor as a relevant circumstance” (Award of 11 April 2006, RIAA, Vol. XXVII, p. 214, para. 241)”.

976

Sources and Rules of International Law

Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 125, para. 198.

Criteria and factors – Maritime delimitation – Provisional delimitation line – Factor of substantial difference in the lengths of the parties’ respective coastlines “The Court acknowledges, as it noted in the cases concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (I.C.J. Reports 1984, p. 336, paras. 221–222) and Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (I.C.J. Reports 1993, p. 34, para. 68), that a substantial difference in the lengths of the parties’ respective coastlines may be a factor to be taken into consideration in order to adjust or shift the provisional delimitation line”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 446, para. 301. Previous: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (I.C.J. Reports 1984, p. 336, paras. 221–222). Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (I.C.J. Reports 1993, p. 34, para. 68).

Criteria and factors – Maritime delimitation- Provisional delimitation line – Limited utility of oil concessions practice and oil wells for the consideration of relevant circumstances purposes “Overall, it follows from the jurisprudence that, although the existence of an express or tacit agreement between the parties on the siting of their respective oil concessions may indicate a consensus on the maritime areas to which they are entitled, oil concessions and oil wells are not in themselves to be considered as relevant circumstances justifying the adjustment or shifting of the provisional delimitation line. Only if they are based on express or tacit agreement between the parties may they be taken into account. In the present case there is no agreement between the Parties regarding oil concessions”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 447, para. 304.



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Criteria and factors – maritime delimitation – Limited utility of the oil practice of the Parties “The Court is therefore of the opinion that the oil practice of the Parties is not a factor to be taken into account in the maritime delimitation in the present case”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 448, para. 304.

Criteria and factors – Maritime delimitation dispute – Role of oil practice of concession “Both the Court and arbitral tribunals have had occasion to deal with the role of oil practice in maritime delimitation disputes. In the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (I.C.J. Reports 1982, p. 18), the Court examined for the first time the question of the significance of oil concessions for maritime delimitation. On that occasion the Court did not take into consideration “the direct northward line asserted as boundary of the Libyan petroleum zones” (I.C.J. Reports 1982, p. 83, para. 117), because that line had “been found . . . to be wanting in those respects [that would have made it opposable] to the other Party” (ibid.); however, the Court found that close to the coasts the concessions of the parties showed and confirmed the existence of a modus vivendi (ibid., p. 84, para. 119)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 447, para. 304. Previous: Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (I.C.J. Reports 1982, p. 18).

Criteria and factors – Maritime delimitation – Role of oil practice of concession – Evidence of acquiescene “In the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) the Chamber of the Court underlined the importance of those findings when it stressed that in that case there did not exist any modus vivendi (I.C.J. Reports 1984, pp. 310–311, paras. 149–152). In that case the Chamber considered that, notwithstanding the alleged coincidence of the American and Canadian oil concessions, the situation was totally different from the Tunisia/Libya case. In the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta (I.C.J. Reports 1985, p. 13) the Court considered that the indications given by the parties could not be viewed as evidence of acquiescence (ibid., pp. 28–29, paras. 24–25)”.

978

Sources and Rules of International Law

Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 447, para. 304. Previous: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), I.C.J. Reports 1984, pp. 310–311, paras. 149–152). Continental Shelf (Libyan Arab Jamahiriya/Malta (I.C.J. Reports 1985, p. 13).

Criteria and factors – Legitimate security consideration as factor in final delimitation line “The Court confines itself to two observations. First, the legitimate security considerations of the Parties may play a role in determining the final delimitation line (see Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 42, para. 51). Second, in the present case however, the provisional equidistance line it has drawn substantially differs from the lines drawn either by Romania or Ukraine. The provisional equidistance line determined by the Court fully respects the legitimate security interests of either Party. Therefore, there is no need to adjust the line on the basis of this consideration”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 128, para. 204. Previous: Continental Shelf (Libyan Arab Jamahiriya/ Malta), Judgment, I.C.J. Reports 1985, p. 42, para. 51).

Criteria and factors – Disproportion relevant criterion or factor – Necessity to remedy the disproportionality and inequitable effects produced by particular geographical configurations or features “The Court now turns to check that the result thus far arrived at, so far as the envisaged delimitation line is concerned, does not lead to any significant disproportionality by reference to the respective coastal lengths and the apportionment of areas that ensue. This Court agrees with the observation that “it is disproportion rather than any general principle of proportionality which is the relevant criterion or factor . . . there can never be a question of completely refashioning nature . . . it is rather a question of remedying the disproportionality and inequitable effects produced by particular geographical configurations or features” (Anglo-French Continental Shelf Case, RIAA, Vol. XVIII, p. 58, para. 101)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 125, para. 198.



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Criteria and factors – Specific geographical circumstances “The Court observes that the method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively. Such conditions are primarily that either the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 212.

Criteria and factors – Specific maritime features determining the qualification as a fringe of islands “The Court does not deny that the maritime features east of Bahrain’s main islands are part of the overall geographical-configuration; it would be going too far, however, to qualify them as a fringe of islands along the coast. The islands concerned are relatively small in number. Moreover, in the present case it is only possible to speak of a “cluster of islands” or an “island system” if Bahrain’s main islands are included in that concept. In such a situation, the method of straight baselines is applicable only if the State has declared itself to be an archipelagic State under Part IV of the 1982 Convention on the Law of the Sea, which is not true of Bahrain in this case”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 214.

Criteria and factors – Maritime delimitation – Importance of islands – Relevant circumstance “The Court accepts that islands have sometimes been taken into account as a relevant circumstance in delimitation when such islands lay within the zone to be delimited and fell under the sovereignty of one of the parties. This occurred in particular in the case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic (RIAA, Vol. XVIII, p. 3) on which Cameroon relies. However, in that case, contrary to what Cameroon contends. The Court of Arbitration sought to draw a delimitation line and not to provide equitable compensation for a natural inequality”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 446, para. 299.

980

Sources and Rules of International Law Criteria and factors – Effect of each maritime feature in the determination of the baselines

“The Court, therefore, concludes that Bahrain is not entitled to apply the method of straight baselines. Thus each maritime feature has its own effect for the determination of the baselines, on the understanding that, on the grounds set out before, the low-tide elevations situated in the overlapping zone of territorial seas will be disregarded. It is on this basis that the equidistance line must be drawn”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 215.

Criteria and factors – Elimination of disproportionate effect of small islands “In similar situations the Court has sometimes been led to eliminate the disproportionate effect of small islands (see North Sea Continental Shelf; I.C.J. Reports 1969, p. 36, para. 57; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para.64). The Court thus finds that there is a special circumstance in this case warranting the choice of a delimitation line passing immediately to the east of Qit’at Jaradah”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 104, para. 219. Previous: North Sea Continental Shelf; I.C.J. Reports 1969, p. 36, para. 57. Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64.

Criteria and factors – Customary right of fishing through state practice “The Court also notes that the Parties have not attempted to define subsistence fishing (except by those exclusions) nor have they asked the Court to provide a definition. Subsistence fishing has without doubt occurred over a very long period. Leaving aside for the moment the issue of fishing in the river from boats, a point to which the Court will return, the Parties agree that the practice of subsistence fishing is long established. They disagree however whether the practice has become binding on Nicaragua thereby entitling the riparians as a matter of customary right to engage in subsistence fishing from the bank. The Court observes that the practice, by its very nature, especially given the remoteness of the area and the small, thinly spread population, is not likely to be documented in any formal way in any official record”.



Sources and Rules of International Law

981

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 265, para. 141.

Criteria and factors – Sovereign rights of a state – Visa: Practical expression of the prerogative “The Court observes at the outset that a distinction must be drawn between requiring visas and requiring tourist cards. The power of a State to issue or refuse visas is a practical expression of the prerogative which each State has to control entry by non-nationals into its territory”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 257, para. 113.

Criteria and factors – Right of free navigation – Definition of commerce inclusion of transportation of goods and persons – Purpose of commerce “Accordingly, the Court finds that the right of free navigation in question applies to the transport of persons as well as the transport of goods, as the activity of transporting persons can be commercial in nature nowadays. This is the case if the carrier engages in the activity for profit-making purposes. A decisive consideration in this respect is whether a price (other than a token price) is paid to the carrier – the boat operator – by the passengers or on their behalf. If so, then the carrier’s activity is commercial in nature and the navigation in question must be regarded as “for the purposes of commerce” within the meaning of Article VI. The Court sees no persuasive reason to exclude the transport of tourists from this category, subject to fulfilment of the same condition. On the other hand, any navigation not carried out either to transport goods intended to form the subject of commercial transactions or to transport passengers in exchange for money paid by them or on their behalf cannot be regarded as falling within the “purposes of commerce” under Article VI. That is the case, in particular, of navigation by vessels used in the performance of governmental activities or to provide public services which are not commercial in nature”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 244, para. 71.

982

Sources and Rules of International Law

Criteria and factors – Permanency of territorial regime established by treaty and life of the same treaty – Regime not dependent upon the life of the treaty “ “[I]t is a principle of international law that a territorial régime established by treaty ‘achieves a permanence which the treaty itself does not necessarily enjoy’ and the continued existence of that régime is not dependent upon the continuing life of the treaty under which the régime is agreed” (Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, I.C.J. Reports 2007 (II), p. 861, para. 89)”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 243, para. 68. Previous: Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, I.C.J. Reports 2007 (II), p. 861, para. 89.

Criteria and factors – Very small islands importance for delimitation purposes “As the jurisprudence has indicated, the Court may on occasion decide not to take account of very small islands or decide not to give them their full potential entitlement to maritime zones, should such an approach have a disproportionate effect on the delimitation line under consideration (see Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 104, para. 219; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 751 et seq., paras. 302 et seq.)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 122, para. 185. Previous: Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 48, para. 64. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 104, para. 219. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 751 et seq., paras. 302 et seq.



Sources and Rules of International Law

983

Principles and Rules of International Law Principles and rules of international law – Equidistance/special circumstances rule as having a customary character – Article 15 of the 1982 Convention and Article 12(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone “Article 15 of the 1982 Convention is virtually identical to Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone, and is to be regarded as having a customary character. It is often referred to as the “equidistance/special circumstances” rule. The most logical and widely practised approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circumstances. Once it has delimited the territorial seas belonging to the Parties, the Court will determine the rules and principles of customary law to be applied to the delimitation of the Parties’ continental shelves and their exclusive economic zones or fishery zones. The Court will further decide whether the method to be chosen for this delimitation differs from or is similar to the approach just outlined”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 176.

Principles and rules of international law – Delimitation of maritime boundary – Special circumstances – Meaning “In seeking to ascertain whether there were in that case factors which should cause it to adjust or shift the median line in order to achieve an “equitable result”, the Court stated: “[i]t is thus apparent that special circumstances are those circumstances which might modify the result produced by an unqualified application of the equidistance principle. General international law, as it has developed through the caselaw of the Court and arbitral jurisprudence, and through the work of the Third United Nations Conference on the Law of the Sea, has employed the concept of ‘relevant circumstances’. This concept can be described as a fact necessary to be taken into account in the delimitation process.” (Ibid., p. 62, para. 55)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 289.

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Sources and Rules of International Law

Principles and rules of international law – Delimitation of maritime boundary – Importance of relevant circumstances and special circumstances “In seeking to ascertain whether there were in that case factors which should cause it to adjust or shift the median line in order to achieve an “equitable result”, the Court stated: “[i]t is thus apparent that special circumstances are those circumstances which might modify the result produced by an unqualified application of the equidistance principle. General international law, as it has developed through the caselaw of the Court and arbitral jurisprudence, and through the work of the Third United Nations Conference on the Law of the Sea, has employed the concept of ‘relevant circumstances’. This concept can be described as a fact necessary to be taken into account in the delimitation process.” (Ibid., p. 62, para. 55)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 289.

Principles and rules of international law – Maritime delimitation beyond 12 nauticle mile zone – Provisional drawing of an equidistance line followed by adjustment as per the circumstances “In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) the Court further stated that “[f ]or the delimitation of the maritime zones beyond the 12-mile zone it [would] first provisionally draw an equidistance line and then consider whether there [were] circumstances which must lead to an adjustment of that line” (I.C.J. Reports 2001, para. 230)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 289. Previous: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), I.C.J. Reports 2001, para. 230.

Principles and rules of international law – Importance of drawing relevant coastlines first before drawing equidistance line and considering relevant circumstances requiring adjustment of that line “Before it can draw an equidistance line and consider whether there are relevant circumstances that might make it necessary to adjust that line, the Court must, however, define the relevant coastlines of the Parties by reference to which the



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location of the base points to be used in the construction of the equidistance line will be determined”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 290.

Principles and rules of international law – Maritime delimitation – Meaning of equidistance line “As the Court made clear in its Judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), “[t]he equidistance line is the line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured” (I.C.J. Reports 2001, para. 177)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 290. Previous: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), I.C.J. Reports 2001, para. 177.

Principles and rules of international law – Primary task of establishment of base points before determining the equidistance line “Once the base points have been established in accordance with the abovementioned principles laid down by the Court in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), it will be possible to determine the equidistance line between the relevant coastlines of the two States”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 292.

Principles and rules of international law – Maritime delimitation – special circumstances considered for adjusting equidistance line to achieve an equitable result “The Court will now consider whether there are circumstances that might make it necessary to adjust this equidistance line in order to achieve an equitable result”.

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Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 293.

Principles and rules of international law – Maritime delimitation – Proof to establish that equidistance method leads equitable result “As the Court stated in the Continental Shelf (Libyan Arab Jamahiriya/ Malta) case: “the equidistance method is not the only method applicable to the present dispute, and it does not even have the benefit of a presumption in its favour. Thus, under existing law, it must be demonstrated that the equidistance method leads to an equitable result in the case in question.” (I.C.J. Reports 1985, p. 47, para. 63)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 293. Previous: Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 47, para. 63.

Principles and rules of international law – Maritime delimitation – Ultimate aim – Equity “The Court is bound to stress in this connexion that delimiting with a concern to achieving an equitable result, as required by current international law, is not the same as delimiting ill equity. The Court’s jurisprudence shows that, in disputes relating to maritime delimitation, equity is not a method of delimitation, but solely an aim that should be borne in mind in effecting the delimitation”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 294.

Principles and rules of international law – Maritime delimitation – Geographical configuration of the maritime areas – Basis for effecting the delimitation “The geographical configuration of the maritime areas that the Court is called upon to delimit is a given. It is not in fact an element open to modification by the Court but a fact on the basis of which the Court must effect the delimitation”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 295.



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Principles and rules of international law – Maritime delimitation – Equity does not necessarily imply equality “As the Court had occasion to state in the North Sea Continental Shelf cases, “[e]quity does not necessarily imply equality”, and in a delimitation exercise “[t]here can never be any question of completely refashioning nature” (I.C.J. Reports 1969, p. 49, para. 91). Although certain geographical peculiarities of maritime areas to be delimited may be taken into account by the Court, this is solely as relevant circumstances, for the purpose, if necessary, of adjusting or shifting the provisional delimitation line”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 295. Previous: North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 49, para. 91.

Principles and rules of international law – Maritime delimitation – No question of completely refashioning the nature “As the Court had occasion to state in the North Sea Continental Shelf cases, “[e]quity does not necessarily imply equality”, and in a delimitation exercise “[t]here can never be any question of completely refashioning nature” (I.C.J. Reports 1969, p. 49, para. 91). Although certain geographical peculiarities of maritime areas to be delimited may be taken into account by the Court, this is solely as relevant circumstances, for the purpose, if necessary, of adjusting or shifting the provisional delimitation line”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 443, para. 295. Previous: North Sea Continental Shelf cases, I.C.J. Reports 1969, p. 49, para. 91.

Principles and rules of international law – Equidistance/ special circumstances rule as having a customary character – Article 15 of the 1982 Convention and Article 12(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone – Delimitation procedure “Article 15 of the 1982 Convention is virtually identical to Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone, and is to be regarded as having a customary character. It is often referred to as the “equidistance/special circumstances” rule. The most logical and widely practised

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approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circumstances. Once it has delimited the territorial seas belonging to the Parties, the Court will determine the rules and principles of customary law to be applied to the delimitation of the Parties’ continental shelves and their exclusive economic zones or fishery zones. The Court will further decide whether the method to be chosen for this delimitation differs from or is similar to the approach just outlined”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 176.

Principles and rules of international law – Delimitation in an equitable manner and awarding a just and equitable share of previously undelimited area – Two different things “The Court wishes, furthermore, to repeat what it said in its Judgment in the North Sea Continental Shelf case: “Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical.” (I.C.J. Reports 1969, p. 22, para. 18)”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 112, para. 234. Previous: North Sea Continental Shelf, I.C.J. Reports 1969, p. 22, para. 18.

Drawing of equidistance line – Procedure – First determination of relevant coasts – Location of baselines and the pertinent base points “The Court will therefore first determine the relevant coasts of the Parties, from which will be determined the location of the baselines and the pertinent basepoints which enable the equidistance line to be measured”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 178.



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Base-lines Base-lines – Knowledge of baselines essential for drawing equidistance line “The equidistance line is the line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. It can only be drawn when the baselines are known. Neither of the Parties has as yet specified the baselines which are to be used for the determination of the breadth of the territorial sea, nor have they produced official maps or charts which reflect such baselines. Only during the present proceedings have they provided the Court with approximate base points which in their view could be used by the Court for the determination of the maritime boundary”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 177.

Base-lines – No deviation from the normal rules for the delimitation of base lines even in case of a multiple-island state or archipelagic state “The fact that a State considers itself a multiple-island State or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met. The coasts of Bahrain’s main islands do not form a deeply indented coast, nor does Bahrain claim this. It contends, however, that the maritime features off the coast of the main islands may be assimilated to a fringe of islands which constitute a whole with the mainland”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 213.

Continental Shelf Continental shelf – Application of boundry to the EEZ – Delimitation – Example “The word “agreement” in paragraph 4 (as elsewhere in the Article) refers to an agreement delimiting the exclusive economic zone (Article 74) or the continental shelf (Article 83) referred to in paragraph 1. State practice indicates that the use of a boundary agreed for the delimitation of one maritime zone to delimit another zone is effected by a new agreement. This typically occurs when States agree to apply their continental shelf boundary to the exclusive economic zone.

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The agreement between Turkey and the USSR applying the continental shelf boundary to the exclusive economic zone is one such example. By the same token, if States intend that their territorial sea boundary limit agreed earlier should later serve also as the delimitation of the continental shelf and/or the exclusive economic zones, they would be expected to conclude a new agreement for this purpose”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 87, para. 69.

Continental shelf – Maritime delimitation – Question of proportionality of coastline lengths – Third parties “In its decision in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the Court did not deal with rights of third States; what was principally at issue there was the question of proportionality of coastline lengths in relation to the process of delimitation between the parties (I.C.J. Reports 1982, p. 91, para. 130). It follows that, in fixing the maritime boundary between Cameroon and Nigeria, the Court must ensure that it does not adopt any position which might affect the rights of Equatorial Guinea and Sao Tome and Principe”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 421, para. 238. Previous: Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 91, para. 130.

Delimitation of the continental shelf – Median line as a provisional line “Thus, in the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), the Court, which had been asked to draw a single maritime boundary, took the view, with regard to delimitation of the continental shelf, that “even if it were appropriate to apply . . . customary law concerning the continental shelf as developed in the decided cases, it is in accord with precedents to begin with the median line as a provisional line and then to ask whether ‘special circumstances’ require any adjustment of shifting of that line” (I.C.J. Reports, 1993, Judgment, p. 61, para. 51). Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 442, para. 289.



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Linkage between continental shelf and exclusive economic zone – Linked together in modern law “Likewise, after noting the link between the continental shelf and the exclusive economic zone, the Court stated in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case that “even though the present case relates only to the delimitation of the continental shelf and not to that of the exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of consideration. As the 1982 Convention demonstrates, the two institutions – continental shelf and exclusive economic zone – are linked together in modern law.” (I.C.J. Reports 1985, p. 33, para. 33)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 441, para. 287. Previous: Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 33, para. 33.

Linkage between continental shelf and exclusive economic zone – Delimitation of the continental shelf – Importance of principles and rules of the exclusive economic zone “Likewise, after noting the link between the continental shelf and the exclusive economic zone, the Court stated in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case that “even though the present case relates only to the delimitation of the continental shelf and not to that of the exclusive economic zone, the principles and rules underlying the latter concept cannot be left out of consideration. As the 1982 Convention demonstrates, the two institutions – continental shelf and exclusive economic zone – are linked together in modern law.” (I.C.J. Reports 1985, p. 33, para. 33)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 441, para. 287. Previous: Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 33, para. 33.

Delimitation of the continental shelf – ICJ dictum – Achievement of equitable result “In particular, it cites the North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 4), which, it claims, adopted equity as the applicable legal concept. It also quotes, inter alia, the Court’s dictum in the case concerning Maritime Delimitation

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in the Area between Greenland and Jan Mayen (Denmark v. Norway) (I.C.J. Reports 1993, p. 62, para. 54), where it is stated that “[t]he aim in each and every situation must be to achieve ‘an equitable result’ ”, as well as a dictum of the Court of Arbitration to similar effect in the case concerning Delimitation of the Continental Shelf (United Kingdom/France) (RIAA, Vol. XVIII, p. 57, para. 97)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 432, para. 270. Previous: Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (I.C.J. Reports 1993, p. 62, para. 54.

Delimitation of the continental shelf – Court of Arbitration dictum – Achievement of equitable result “In particular, it cites the North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 4), which, it claims, adopted equity as the applicable legal concept. It also quotes, inter alia, the Court’s dictum in the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (I.C.J. Reports 1993, p. 62, para. 54), where it is stated that “[t]he aim in each and every situation must be to achieve ‘an equitable result’ ”, as well as a dictum of the Court of Arbitration to similar effect in the case concerning Delimitation of the Continental Shelf (United Kingdom/France) (RIAA, Vol. XVIII, p. 57, para. 97)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 432, para. 270. Previous: Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) (I.C.J. Reports 1993, p. 62, para. 54.

Continental shelf – Application of boundary to the EEZ – Delimitation – Expectation of a conclusion of new agreement “The word “agreement” in paragraph 4 (as elsewhere in the Article) refers to an agreement delimiting the exclusive economic zone (Article 74) or the continental shelf (Article 83) referred to in paragraph 1. State practice indicates that the use of a boundary agreed for the delimitation of one maritime zone to delimit another zone is effected by a new agreement. This typically occurs when States agree to apply their continental shelf boundary to the exclusive economic zone. The agreement between Turkey and the USSR applying the continental shelf boundary to the exclusive economic zone is one such example. By the same



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token, if States intend that their territorial sea boundary limit agreed earlier should later serve also as the delimitation of the continental shelf and/or the exclusive economic zones, they would be expected to conclude a new agreement for this purpose”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 87, para. 69.

Continental shelf – Domination of land over sea principle “The title of a State to the continental shelf and to the exclusive economic zone is based on the principle that the land dominates the sea through the projection of the coasts or the coastal fronts. As the Court stated in the North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands) cases, “the land is the legal source of the power which a State may exercise over territorial extensions to seaward” ( Judgment, I.C.J. Reports 1969, p. 51, para. 96). In the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the Court observed that “the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it” ( Judgment, I.C.J. Reports 1982, p. 61, para. 73)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 89, para. 77. Previous: North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 73.

Continental shelf – Coastal territory decisive factor for title to submarine areas “The title of a State to the continental shelf and to the exclusive economic zone is based on the principle that the land dominates the sea through the projection of the coasts or the coastal fronts. As the Court stated in the North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands) cases, “the land is the legal source of the power which a State may exercise over territorial extensions to seaward” ( Judgment, I.C.J. Reports 1969, p. 51, para. 96). In the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the Court observed that “the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it” ( Judgment, I.C.J. Reports 1982, p. 61, para. 73)”.

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Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 89, para. 77. Previous: North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 73.

Continental shelf – two principles – land dominates sea and generation of projection of one coast over other coast “The Court, in considering the issue in dispute, would recall two principles underpinning its jurisprudence on this issue: first, that the “land dominates the sea” in such a way that coastal projections in these award direction generate maritime claims (North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96); second, that the coast, in order to be considered as relevant for the purpose of the delimitation, must generate projections which overlap with projections from the coast of the other Party. Consequently “the submarine extension of any part of the coast of one Party which, because of its geo-graphic situation, cannot overlap with the extension of the coast of the other, is to be excluded from further consideration by the Court” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 75)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 96, para. 99. Previous: North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61, para. 75.

Continental shelf – Legal concept of relevant area and maritime delimitation “The Court observes that the legal concept of the “relevant area” has to be taken into account as part of the methodology of maritime delimitation”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 99, para. 110.



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Continental shelf – Delimitation – Practical method – Inclusion and exclusion of factors “In the first place, depending on the configuration of the relevant coasts in the general geographical context and the methods for the construction of their seaward projections, the relevant area may include certain maritime spaces and exclude others which are not germane to the case in hand”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 99, para. 110.

Continental shelf and EEZ not to be assigned in proportion to length of respective coastlines – Equitableness of the delimitation to be checked ex post facto “The continental shelf and exclusive economic zone allocations are not to be assigned in proportion to length of respective coastlines. Rather, the Court will check, ex post facto, on the equitableness of the delimitation line it has constructed (Delimitation of the maritime boundary between Guinea and GuineaBissau, RIAA, Vol. XIX, pp. 183–184, paras. 94–95)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 129, para. 2111.

Single Maritime Boundary No assimilation of maritime boundary delimiting the continental shelf and EEZ “The Court observes that a maritime boundary delimiting the continental shelf and exclusive economic zones is not to be assimilated to a State boundary separating territories of States. The former defines the limits of maritime zones where under international law coastal States have certain sovereign rights for defined purposes. The latter defines the territorial limits of State sovereignty. Consequently, the Court considers that no confusion as to the nature of the maritime boundary delimiting the exclusive economic zone and the continental shelf arises and will thus employ this term”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 130, para. 217.

996

Sources and Rules of International Law Single maritime boundary – Concept – Functions

“It should be kept in mind that the concept of “single maritime boundary” may encompass a number of functions. In the present case the single maritime boundary will be the result of the delimitation of various jurisdictions. In the southern part of the delimitation area, which is situated where the coasts of the Parties are opposite to each other, the distance between these coasts is nowhere more than 24 nautical miles. The boundary the Court is expected to draw will, therefore, delimit exclusively their territorial seas and, consequently an area over which they enjoy territorial sovereignty”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 91, para. 169.

Maritime delimitation – Concept of single maritime boundary “The Court also notes that the Parties agreed in their written pleadings that the delimitation between their maritime areas should be effected by a single line. As the Court had occasion to recall in its Judgment of 16 March 2001 in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), “the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and . . . finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various – partially coincident – zones of maritime jurisdiction appertaining to them” (I.C.J. Reports 2001, para. 173)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 440, para. 286. Previous: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), I.C.J. Reports 2001, para. 173.

Maritime delimitation – Concept of single maritime boundary originating from State practice “The Court also notes that the Parties agreed in their written pleadings that the delimitation between their maritime areas should be effected by a single line. As the Court had occasion to recall in its Judgment of 16 March 2001 in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), “the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and . . . finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting



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the various -partially coincident – zones of maritime jurisdiction appertaining to them” (I.C.J. Reports 2001, para. 173”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 440, para. 286. Previous: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), I.C.J. Reports 2001, para. 173.

Single maritime boundary – Source – State pratice “The Court observes that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and that it finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various – partially coincident zones of maritime jurisdiction appertaining to them. In the case of coincident jurisdictional zones, the determination of a single boundary for the different objects of delimitation “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these . . . objective to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them” ”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 173.

Single maritime boundary – Source of concept – State practice “The Court observes that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and that it finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various – partially coincident zones of maritime jurisdiction appertaining to them. In the case of coincident jurisdictional zones, the determination of a single boundary for the different objects of delimitation “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these . . . objective to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them” ”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 173.

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Single maritime boundary – Source of concept – State practice – purpose “The Court observes that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and that it finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various – partially coincident zones of maritime jurisdiction ­appertaining to them. In the case of coincident jurisdictional zones, the determination of a single boundary for the different objects of delimitation “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these . . . objective to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them” ”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 173.

Single maritime boundary – Source of concept – State practice – Method and criteria and ultimate aim “The Court observes that the concept of a single maritime boundary does not stem from multilateral treaty law but from State practice, and that it finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various – partially coincident zones of maritime jurisdiction appertaining to them. In the case of coincident jurisdictional zones, the determination of a single boundary for the different objects of delimitation “can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these . . . objective to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them” ”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 173.

Delimitation of Territorial Sea Delimitation of territorial sea – First and foremost importance to the principles and rules of customary international law “Delimitation of territorial seas does not present comparable problems, since the rights of the coastal State in the area concerned are not functional but territorial, and entail sovereignty over the sea-bed and the super adjacent waters, and



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air column. Therefore, when carrying out that part of its task, the Court has to apply first and foremost the principles and rules of international customary law which refer to the delimitation of the territorial sea, while taking into account that its ultimate task is to draw a single maritime boundary that serves other purposes as well”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 174.

Delimitation of the territorial sea – Circumstances of opposite or adjacent coasts – Role of historic title or other special circumstances “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest point on the base lines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 93, para. 175.

General Land determines maritime rights “Since it is the land which determines maritime rights, the relevant base points are situated on all those maritime features over which Bahrain has sovereignty”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 96, para. 180.

Land dominates sea principle “In previous cases the Court has made clear that maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as “the land dominates the sea” (North Sea Continental Shelf: I.C.J. Reports 1969, p. 51, para. 96; Aegean Sea Continental Shelf; I.C.J. Reports 1978, p. 36, para. 86)”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 97, para. 185.

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Previous: North Sea Continental Shelf: I.C.J. Reports 1969, p. 51, para. 9. Aegean Sea Continental Shelf: I.C.J. Reports 1978, p. 36, para. 86.

Terrestrial territorial situation as a starting point – Rights of islands as other land territory “It is thus the terrestrial territorial situation that must be taken as starting point for the determination of the maritime rights of a coastal State. In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law, islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 97, para. 185.

Legal definition of island “The Court recalls that the legal definition of an island is “a naturally formed area of land, surrounded by water, which is above water at high tide” (1958 Convention on the Territorial Sea and Contiguous Zone, Art. 10, para. 1; 1982 Convention on the Law of the Sea, Art. 121, para. 1). The Court has carefully analysed the evidence submitted by the Parties and weighed the conclusions of the experts referred to above, in particular the fact that the experts appointed by Qatar did not themselves maintain that it was scientifically proven that Qit’at Jaradah is a low-tide elevation. On these bases, the Court concludes that the maritime feature of Qit’at Jaradah satisfies the above-mentioned criteria and that it is an island which should as such be taken into consideration for the drawing of the equidistance line”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 99, para. 195.

Legal definition of island – Use of scientific evidence to prove the status as an island – Drawing of equidistance line “The Court recalls that the legal definition of an island is “a naturally formed area of land, surrounded by water, which is above water at high tide” (1958 Convention on the Territorial Sea and Contiguous Zone, Art. 10, para. 1; 1982 Convention on the Law of the Sea, Art. 121, para. 1). The Court has carefully analysed the evidence submitted by the Parties and weighed the conclusions of the experts referred to above, in particular the fact that the experts appointed by Qatar did



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not themselves maintain that it was scientifically proven that Qit’at Jaradah is a low-tide elevation. On these bases, the Court concludes that the maritime feature of Qit’at Jaradah satisfies the above-mentioned criteria and that it is an island which should as such be taken into consideration for the drawing of the equidistance line”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 99, para. 195.

Territorial sovereignty decisions of tribunals – Utility “In this context the Court recalls that the Permanent Court of International Justice observed in the Legal Status of Eastern Greenland case that “It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim.” (P.C.I.J., Series A/B, No. 53, p. 46)”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 100, para. 198. Previous: Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No. 53, p. 46.

Low-Tide Elevation Low-tide elevation meaning “According to the relevant provisions of the Conventions on the Law of the Sea, which reflect customary international law, a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide (1958 Convention on the Territorial Sea and the Contiguous Zone, paragraph 1 of Article 11; 1982 Convention on the Law of the Sea, paragraph 1 of Article 13)”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 100, para. 201.

Low-tide elevations – Silence of international treaty law and lack of uniform and widespread state practice “The Court went on to say as follows: “International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory’. Nor is

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the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations . . . The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands. It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition; the difference in effects which the law of the sea attributes to islands and low-tide elevations is considerable. It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory.” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 101–102, paras. 205–206)”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 100, para. 296. Previous: Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, pp. 101–102, paras. 205–206.

Low-tide elevation role in the maritime delimitation “When a low-tide elevation is situated in the overlapping area of the territorial sea of two States, whether with opposite or with adjacent coasts, both States in principle are entitled to use its low-water line for the measuring of the breadth of their territorial sea. The same low-tide elevation then forms part of the coastal configuration of the two States. That is so even if the low-tide elevation is nearer to the coast of one State than that of the other, or nearer to an island belonging to one party than it is to the mainland coast of the other. For delimitation purposes the competing rights derived by both coastal States from the relevant provisions of the law of the sea would by necessity seem to neutralize each other”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 101, para. 202.

Low-tide elevation – Role in the determination of legal coast line “Whether this claim by Bahrain is well founded depends upon the answer to the question whether low-tide elevations are territory and can be appropriated in conformity with the rules and principles of territorial acquisition. In the view of the Court, the question in the present case is not whether low-tide elevations are or are not part of the geographical configuration and as such may



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determine the legal coastline. The relevant rules of the law of the sea explicitly attribute to them that function when they are within a State’s territorial sea. Nor is there any doubt that a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself, including its sea-bed and subsoil. The decisive question for the present case is whether a State can acquire sovereignty by appropriation over a low-tide elevation situated within the breadth of its territorial sea when that same low-tide elevation lies also within the breadth of the territorial sea of another State”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 101, para. 204.

Low-tide elevations – Treaty law and state practice – Whether territory or not “International treaty law is silent on the question whether low-tide elevations can be considered to be “territory”. Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations. It is only in the context of the law of the sea that a number of permissive rules have been established with regard to low-tide elevations which are situated at a relatively short distance from a Coast”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 101, para. 205.

Low-tide elevations – Treaty law or state practice – Whether territory or not – Permissive rules in the context of the operation of the Law of the Sea Convention “International treaty law is silent on the question whether low-tide elevations can be considered to be “territory”. Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations. It is only in the context of the law of the sea that a number of permissive rules have been established with regard to low-tide elevations which are situated at a relatively short distance from a Coast”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 101, para. 205.

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“The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands. It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition; the difference in effects which the law of the sea attributes to islands and low-tide elevations is considerable. It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 102, para. 206.

Low-tide elevations – Situation of low-tide elevation beyond territorial sea – Generation of no rights as islands or other territory “In this respect the Court recalls the rule that a low-tide elevation which is situated beyond the limits of the territorial sea does not have a territorial sea of its own. A low-tide elevation, therefore, as such does not generate the same rights as islands or other territory. Moreover, it is generally recognized and implicit in the words of the relevant provisions of the Convention on the Law of the Sea that, whereas a low-tide elevation which is situated within the limits of the territorial sea may be used for the determination of its breadth, this does not hold for a low-tide elevation which is situated less than 12 nautical miles from that low-tide elevation but is beyond the limits of the territorial sea. The law of the sea does not in these circumstances allow application of the so-called “leap-frogging” method. In this respect it is irrelevant whether the coastal State has treated such a low-tide elevation as its property and carried out some governmental acts with regard to it; it does not generate a territorial sea”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 102, para. 207.

Low-tide elevations – Drawing of straight base lines to and from low-elevations – Not permissible “Paragraph 3 of Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone and paragraph 4 of Article 7 of the 1982 Convention on the Law of the Sea provide that straight baselines shall not be drawn to and from lowtide elevations unless lighthouses or similar installations which are permanently



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above sea level have been built on them. These provisions are another indication that low-tide elevations cannot be equated with islands, which under all circumstances qualify as base points for straight baselines”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 102, para. 208.

Low-tide elevations – Drawing of straight base lines to and from low-elevations – Except for lighthouses or similar installations – Low-tide elevations cannot be equated with islands “Paragraph 3 of Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone and paragraph 4 of Article 7 of the 1982 Convention on the Law of the Sea provide that straight baselines shall not be drawn to and from lowtide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them. These provisions are another indication that low-tide elevations cannot be equated with islands, which under all circumstances qualify as base points for straight baselines”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 102, para. 208.

Task of the court or tribunal – Determination of the boundary line – Sharing out of the area is consequence of the delimitation and not vice-versa “In the same sense the Court stated in the Judgment in the Jan Mayen case: “The task of a, tribunal is to define the boundary line between the areas under the maritime jurisdiction of two States; the sharing-out of the area is therefore the consequence of the delimitation, not vice versa.” (I.C.J. Reports 1993, p. 67, para. 64)”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 112, para. 234. Previous: Jan Mayen, I.C.J. Reports 1993, p. 67, para. 64.

Division of sea-bed by colonizer (UK) and current role of the Court – No impact of coloniser’s decision in the present delimitation process “The Court further observes that the British decision only concerned the division of the sea-bed between the Parties. The delimitation to be effected by the Court, however, is partly a delimitation of the territorial sea and partly a combined

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delimitation of the continental shelf and the exclusive economic zone. The 1947 line cannot therefore be considered to have direct relevance for the present delimitation process”. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 113, para. 240.

Maritime delimitation – Approach of Arbitral Tribunal – No importance to the oil concessions “As to arbitration, the Arbitral Tribunal in the Guinea/Guinea Bissau case declined to take into consideration an oil concession granted by Portugal (ILM, Vol. 25 (1986), p. 281, para. 63). The Arbitral Tribunal in the case concerning Delimitation of Maritime Areas between Canada and the French Republic (St. Pierre et Miquelon) accorded no importance to the oil concessions granted by the parties (ILM, Vol. 31 (1992), pp. 1174–1175, paras. 89–91)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 447, para. 304.

Sub Chapter II Entities other than States Terminology – Meaning of Occupied Territory “The Court would observe that, under customary international law as reflected (see paragraph 89 below) in Article 42 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter “the Hague Regulations of 1907”), territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 167, para. 78.

Objective of the sacred trust – Non-self governing territories “The Court would recall that in 1971 it emphasized that current developments in “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all [such territories]”. The Court went on to state that “These



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developments leave little doubt that the ultimate objective of the sacred trust” referred to in Article 22, paragraph I, of the Covenant of the League of Nations “was the self-determination . . . of the peoples concerned” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, paras. 52–53)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 172, para. 88. Previous: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, paras. 52–53.

Self-determination – Right erga omnes “The Court has referred to this principle on a number of occasions in its jurisprudence (ibid.; see also Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162). The Court indeed made it clear that the right of peoples to selfdetermination is today a right erga omnes (see East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 172, para. 88. Previous: Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 68, para. 162. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29.

Sub Chapter III International Organisations Chapter III The Violation of International Law Sub Chapter I International Responsibility International Responsibility International Responsibility – Breach of obligation – Symbolic compensation “As for the request that the Court hold the Respondent to be under an obligation to the Applicant to provide symbolic compensation, in an amount to be

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determined by the Court, for the breach thus found, the Court observes that the question of compensation for the injury caused to the Applicant by the Respondent’s breach of aspects of the Orders indicating provisional measures merges with the question of compensation for the injury suffered from the violation of the corresponding obligations under the Genocide Convention”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 231, para. 458.

International Responsibility – Breach of obligation – compensation – Appropriate satisfaction It is however clear that the Applicant is entitled to reparation in the form of satisfaction, and this may take the most appropriate form, as the “Applicant itself suggested, of a declaration in the present Judgment that the Respondent has failed to comply with the obligation imposed by the Convention to prevent the crime of genocide. As in the Corfu Channel (United Kingdom v. Albania) case, the Court considers that a declaration of this kind is “in itself appropriate satisfaction” (Merits, Judgment, I.C.J. Reports 1949, pp. 35, 36), and it will, as in that case, include such a declaration in the operative clause of the present Judgment”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 234, para. 463. Previous: Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, pp. 35, 36.

International Responsibility – Principle of reparation for an internationally wrongful act “The principle governing the determination of reparation for an internationally wrongful act is as stated by the Permanent Court of International Justice in the Factory at Chorzów case: that “reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (P.C.I.J., Series A, No. 17, p. 47: see also Article 31 of the ILC’s Articles on State Responsibility). In the circumstances of this case, as the Applicant recognizes, it is inappropriate to ask the Court to find that the Respondent is under an obligation of restitutio in integrum. Insofar as restitution is not possible, as the Court stated in the case of the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “[i]t is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the



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d­ amage caused by it” (I.C.J. Reports 1997, p. 81, para. 152.; cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 198, paras. 152–153; see also Article 36 of the ILC’s Articles on State Responsibility). It is therefore appropriate to consider what were the consequences of the failure of the Respondent to comply with its obligations under the Genocide Convention to prevent and punish the crime of genocide, committed in Bosnia and Herzegovina, and what damage can be said to have been caused thereby”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 232, para. 460. Previous: Factory at Chorzów, P.C.I.J., Series A, No. 17, p.47. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p. 81, para. 152. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 198, paras. 152–153.

International Responsibility – Non-repetition of wrongful acts “The Court considers that, if a State assumes an obligation in an international agreement to respect the sovereignty and territorial integrity of the other States parties to that agreement (an obligation which exists also under general international law) and a commitment to co-operate with them in order to fulfil such obligation, this expresses a clear legally binding undertaking that it will not repeat any wrongful acts”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 256, para. 257.

International Responsibility – Principle of reparation “The Court observes that it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act (see Factory at Chorzów, Jurisdiction, 1927, P.C.I.J., Series A, No. 9, p. 21; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 81, para. 152; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 59, para. 119)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 257, para. 259.

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Previous: Factory at Chorzów, Jurisdiction, 1927, P.C.I.J., Series A, No. 9, p. 21. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 81, para. 152. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 59, para. 119.

International Responsibility – Form of reparation for the injured state “As for the second submission set forth in paragraph 147 above, it should be recalled that the cessation of a violation of a continuing character and the consequent restoration of the legal situation constitute a form of reparation for the injured State. With regard to the claim for compensation, the Court notes that Costa Rica has not submitted any evidence capable of demonstrating that it has suffered a financially assessable injury. The Court therefore will not uphold that part of the submissions”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 149.

International Responsibility – Assurances and guarantees of non-repetition to the injured state to be ordered by the Court on the basis of circumstances “Finally, while the Court may order, as it has done in the past, a State responsible for internationally wrongful conduct to provide the injured State with assurances and guarantees of non-repetition, it will only do so if the circumstances so warrant, which it is for the Court to assess. As a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed (see Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17,p.63; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 63; and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). There is thus no reason, except in special circumstances of which the Court is not aware in the present case, to order a measure such as that requested by Costa Rica”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 150. Previous: Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 63.



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Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 60. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 63; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101).

The violation of international law – International Responsibility – Consequences of the unlawful act – Remedy – Apology “The Court considers however that an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph I, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 512, para. 123.

The violation of international law – International Responsibility – Consequences of the unlawful act – Remedy – Apology “It is no doubt the case, as the United States points out, that Article 36 of the Vienna Convention imposes identical obligations on States, irrespective of the gravity of the offence a person may be charged with and of the penalties that may be imposed. However, it does not follow therefrom that the remedies for a violation of this Article must be identical in all situations. While an apology may be an appropriate remedy in some cases, it may in others be insufficient. The Court accordingly finds that this claim of inadmissibility must be rejected”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 489, para. 63.

International Responsibility – Puting an end to an internationally wrongful act by a responsible State “The obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law, and the Court has on a number of occasions confirmed the existence of that obligation (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986, p. 149; United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 197, para. 150.

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Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 149. United States Diplomatic and Consular Stafl in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82.

International Responsibility – Reparation – Means and methods of reparation – International practice and decisions of arbitral tribunals “The essential principle contained in the actual notion of an illegal act a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it such are the principles which should serve to determine the amount of compensation due for an act contrary to international law”. (Factory at Chorzow, Judgment No. 13. 1928. P.C.I.J. Series A, No. 17, p. 47)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 198, para. 152. Previous: Factory at Chorzow, Judgment No. 13. 1928. P.C.I.J. Series A, No. 17, p. 47

Right of peoples to self-determination – Irreproachable – erga omnes character “As regards the first of these, the Court has already observed (paragraph 88 above) that in the East Timor case, it described as “irreproachable” the assertion that “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199, para. 156. Previous: East Timor, I.C.J. Reports 1995, p. 102, para. 29.



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International Responsibility – Obligations of states in the realisation of the principle of equal rights and self-determination of peoples “Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle . . .”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199, para. 156.

International Responsibility – International humanitarian law – Respect of the human person and rudimentary considerations of humanity – Intransgressible principles of international customary law – erga omnes character “With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons it stated that “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and rudimentary considerations of humanity’ . . .”, that they are “to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (I.C.J. Reports J996 (I), p. 257, para. 79). In the Court’s view these rules incorporate obligations which are essentially of an erga omnes character”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199, para. 157. Previous: Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports J996 (I), p. 257, para. 79.

International Responsibility – International humanitarian law – Geneva Conventions – 4th Geneva Convention – Obligations of states regardless of being party to the Convention to ensure compliance with instruments’ requirements “The Court would also emphasize that Article I of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is

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under an obligation to ensure that the requirements of the instruments in question are complied with”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199, para. 158.

International Responsibility – Collective legal interests of states in protection of certain rights “As the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of all States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection” (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, para. 33)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199, para. 155. Previous: Barcelona Traction Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, para. 33.

The violation of international law – International Responsibility – Consequences of the unlawful act – Remedy – general assurance of non-repetition “If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard. The programme in question certainly cannot provide an assurance that there will never again be a failure by the United States to observe the obligation of notification under Article 36 of the Vienna Convention. But no State could give such a guarantee and Germany does not seek it. The Court considers that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph I (b), must be regarded as meeting Germany’s request for a general assurance of non-repetition”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 512, para. 124.



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The violation of international law – International Responsibility – Consequences of the unlawful act – Remedy – Obligation to undertake specific Steps in accordance with constitutions of the parties “The Court considers in this respect that if the United States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 513, para. 125.

The violation of international law – International Responsibility – Consequences of the unlawful act – Remedy – Undertaking of a commitment by a party as a measure to meet the Court’s decision “In reply to the fourth submission of Germany, the Court will therefore limit itself to taking note of the commitment undertaken by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention, as well as the aforementioned duty of the United States to address violations of that Convention should they still occur in spite of its efforts to achieve compliance”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 127.

Commission of genocide – International Responsibility – Distinction between complicity in genocide and aid or assistance of a State in the commission of a wrongful act “Although this provision, because it concerns a situation characterized by a relationship between two States, is not directly relevant to the present case, it nevertheless merits consideration. The Court sees no reason to make any distinction of substance between “complicity in genocide”, within the meaning of Article III, paragraph (e), of the Convention, and the “aid or assistance” of a State in the commission of a wrongful act by another State within the meaning of the aforementioned Article 16 – setting aside the hypothesis of the issue

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of instructions or directions or the exercise of effective control, the effects of which, in the law of international responsibility, extend beyond complicity. In other words, to ascertain whether the Respondent is responsible for “complicity in genocide” within the meaning of Article III, paragraph (e), which is what the Court now has to do, it must examine whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished “aid or assistance” in the commission of the genocide in Srebrenica, in a sense not significantly different from that of those concepts in the general law of international responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 217, para. 420.

Commission of genocide – Link between the specific intent and motive “Before the Court turns to an examination of the facts, one further comment is required. It concerns the link between the specific intent (dolus specialis) which characterizes the crime of genocide and the motives which inspire the actions of an accomplice (meaning a person providing aid or assistance to the direct perpetrators of the crime): the question arises whether complicity presupposes that the accomplice shares the specific intent (dolus specialis) of the principal perpetrator. But whatever the reply to this question, there is no doubt that the conduct of an organ or a person furnishing aid or assistance to a perpetrator of the crime of genocide cannot be treated as complicity in genocide unless at the least that organ or person acted knowingly, that is to say, in particular, was aware of the specific intent (dolus specialis) of the principal perpetrator. If that condition is not fulfilled, that is sufficient to exclude categorization as complicity”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 218, para. 421.

Commission of genocide – Prevention and punishment “It is true that, simply by its wording, Article I of the Convention brings out the close link between prevention and punishment: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” It is also true that one of the most effective ways of preventing criminal acts, in general, is to provide penalties for persons committing such acts, and to impose those penalties effectively on those who commit the acts one is trying to prevent. Lastly, it is true that, although in the subsequent Articles, the Convention includes fairly detailed provisions concerning the duty to punish (Articles III to VII), it reverts to



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the obligation of prevention, stated as a principle in Article I, only in Article VIII: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 219, para. 426.

International Responsibility – Commission of genocide – Obligation to cooperate with international courts and tribunal “It is thus to the obligation for States parties to co-operate with the “international penal tribunal” mentioned in the above provision that the Court must now turn its attention. For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory – even if the crime of which they are accused was committed outside it – and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 227, para. 443.

Prevention of genocide – Normative and compelling obligation “However, it is not the case that the obligation to prevent has no separate legal existence of its own; that it is, as it were, absorbed by the obligation to punish, which is therefore the only duty the performance of which may be subject to review by the Court. The obligation on each contracting State to prevent genocide is both normative and compelling. It is not merged in the duty to punish, nor can it be regarded as simply a component of that duty. It has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate. Even if and when these organs have been called upon, this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 219, para. 427.

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Prevention of genocide – Normative and compelling obligation – treaty law “First, the Genocide Convention is not the only international instrument providing for an obligation on the States parties to it to take certain steps to prevent the acts it seeks to prohibit. Many other instruments include a similar obligation, in various forms: see, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (Art. 2); the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, of 14 December 1973 (Art. 4); the Convention on the Safety of United Nations and Associated Personnel of 9 December 1994 (Art. 11); the International Convention on the Suppression of Terrorist Bombings of 15 December 1997 (Art. 15). The content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 220, para. 429.

Prevention of genocide – Due diligence of a State “A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430.

International Responsibility – Violation of the obligation to prevent genocide “This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention



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are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 222, para. 431.

International Responsibility – Breach of obligation to prevent genocide “Thirdly, a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 431.

General obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law “The decision of the Court does not, in this case, purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts. Still less does the decision of the Court purport to find whether, apart from the texts applicable to specific fields, there is a general obligation on States to prevent the commission by other persons or entities of acts contrary to certain norms of general international law”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 220, para. 429.

Nature of obligation – Distinction between conduct and result “Secondly, it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430.

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Sources and Rules of International Law Difference between violation of obligation to prevent genocide and responsibility for complicity in genocide

“Fourth and finally, the Court believes it especially important to lay stress on the differences between the requirements to be met before a State can be held to have violated the obligation to prevent genocide – within the meaning of Article I of the Convention – and those to be satisfied in order for a State to be held responsible for “complicity in genocide” – within the meaning of Article III, paragraph (e) – as previously discussed. There are two main differences; they are so significant as to make it impossible to treat the two types of violation in the same way”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 222, para. 432.

Constitutive elements of complicity in genocide and preventive obligations “In the first place, as noted above, complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission; this is merely the reflection of the notion that the ban on genocide and the other acts listed in Article III, including complicity, places States under a negative obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 222, para. 432.

Difference between individual as accomplice and complicity of a State in genocide “In other words, an accomplice must have given support in perpetrating the genocide with full knowledge of the facts. By contrast, a State may be found to have violated its obligation to prevent even though it had no certainty, at the time when it should have acted, but failed to do so, that genocide was about to be committed or was under way; for it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed”.



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Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 223, para. 432.

Influence of orders issued by a complicit state on individuals “The Court’s use, in the above passage, of the term “influence” is particularly revealing of the fact that the Order concerned not only the persons or entities whose conduct was attributable to the FRY, but also all those with whom the Respondent maintained close links and on which it could exert a certain influence. Although in principle the two issues are separate, and the second will be examined below, it is not possible, when considering the way the Respondent discharged its obligation of prevention under the Convention, to fail to take account of the obligation incumbent upon it, albeit on a different basis, to implement the provisional measures indicated by the Court”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 224, para. 435.

Treaties – Consequences of connection between the breach of obligation of one or more provisions of a multilateral Treaty “The Court concludes therefrom that on the facts of this case, the breach of the United States had the consequence of depriving Germany of the exercise of the rights accorded it under Article 36, paragraph 1 (a) and paragraph 1 (c), and thus violated these provisions of the Convention. Although the violation of paragraph 1 (b) of Article 36 will not necessarily always result in the breach of the other provisions of this Article, the Court finds that the circumstances of this case compel the opposite conclusion, for the reasons indicated below. In view of this finding, it is not necessary for the Court to deal with Germany’s further claim under Article 5 of the Convention”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 489, para. 63.

International Responsibility – Environment – Environment impact assessment as a requirement under general international law “In this sense, the obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may

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have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 83, para. 204.

International Responsibility – Environment – Scope and content of an environmental impact assessment not specified in general international law “The Court observes that neither the 1975 Statute nor general international law specify the scope and content of an environmental impact assessment”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 83, para. 204.

International Responsibility – Environment – Obligatory nature – Specific content of the environmental impact assessment in accordance with domestic legislation or other appropriate means “Consequently, it is the view of the Court that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 83, para. 205.

International Responsibility – Environment – Method to assess the amount of discharge of effluent assessment by the Court “To determine whether the concentrations of pollutants discharged by the Orion (Botnia) mill are within the regulatory limits, the Court will have to assess them



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against the effluent discharge limits – both in terms of the concentration of effluents in each litre of wastewater discharged and the absolute amount of effluents that can be discharged in a day – prescribed by the applicable ­regulatory standards of the Parties, as characterized by the Court in paragraph 200 above, and the permits issued for the plant by the Uruguayan authorities, since the Digest only sets general limits on “hydrocarbons”, “sedimentable solids”, and “oils and greases”, but does not establish specific ones for the substances in contention between the Parties. Argentina did not allege any non-compliance of the Orion (Botnia) mill with CARU’s effluent standards (CARU Digest, Sec. E3 (1984, as amended))”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 90, para. 227.

International Responsibility – Environmental damage “[i]n the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damageto the environment and of the limitations inherent in the very mechanism of reparation of this type of damage” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 76, para. 185. Previous: Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140.

International Responsibility – Obligation of conduct “The Court considers that the obligation laid down in Article 36 is addressed to both Parties and prescribes the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct. Both Parties are therefore called upon, under Article 36, to exercise due diligence in acting through the Commission for the necessary measures to preserve the ecological balance of the river”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 77, para. 187.

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Sources and Rules of International Law International Responsibility – Prevention of environmental harm

“The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 241–242, para. 29)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 78, para. 193. Previous: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 241–242, para. 29.

International Responsibility – Joint obligation of parties – Environmental effects “The Court moreover had occasion to stress, in the Gabčíkovo-Nagymaros Project case, that “the Parties together should look afresh atthe effects on the environment of the operation of the Gabčíkovo power plant” (Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140). The Court is mindful of these statements in taking up now the examination of Article 41 of the 1975 Statute”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 78, para. 194. Previous: Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140.

International Responsibility – Environment regime – Obligation for undertaking environmental impact assessment “It is the opinion of the Court that in order for the Parties properly to comply with their obligations under Article 41 (a) and (b) of the 1975 Statute, they must, for the purposes of protecting and preserving the aquatic environment with respect to activities which may be liable to cause transboundary harm, carry out an environmental impact assessment. As the Court has observed in the case concerning the Dispute Regarding Navigational and Related Rights”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 82, para. 204.



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International Responsibility – Trust and confidence inherent in international cooperation “One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation . . .” (Judgments, I.C.J. Reports 1974, p. 268, para. 46, and p. 473, para. 49; see also Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 67, para. 145. Previous: Judgments, I.C.J. Reports 1974, p. 268, para. 46, and p. 473, para. 49. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94.

International Responsibility – Importance of procedural mechanism “Consequently, in the opinion of the Court, as long as the procedural mechanism for co-operation between the parties to prevent significant damage to one of them is taking its course, the State initiating the planned activity is obliged not to authorize such work and, a fortiori, not to carry it out”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 676, para. 144.

International Responsibility – Means of communication “The Court considers that the information on the plans for the mills which reached CARU via the companies concerned or from other non-governmental sources cannot substitute for the obligation to inform laid down in Article 7, first paragraph, of the 1975 Statute, which is borne by the party planning to construct the works referred to in that provision. Similarly, in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the Court observed that “[i]f the information eventually came to Djibouti through the press, the information disseminated in this way could not be taken into account for the purposes of the application of Article 17 [of the Convention on Mutual Assistance in Criminal Matters between the two countries, providing that ‘[r]easons shall be given for any refusal of mutual assistance’]” ( Judgment, I.C.J. Reports 2008, p. 231, para. 150)”.

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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 58, para. 110. Previous: Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 231, para. 150.

International Responsibility – Obligation of notification “In the opinion of the Court, the obligation to notify is intended to create the conditions for successful co-operation between the parties, enabling them to assess the plan’s impact on the river on the basis of the fullest possible information and, if necessary, to negotiate the adjustments needed to avoid the potential damage that it might cause”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 58, para. 113.

International Responsibility – Environment – Importance of and procedure for communicating environmental impact assessment “The Court notes that the environmental impact assessments which are necessary to reach a decision on any plan that is liable to cause significant transboundary harm to another State must be notified by the party concerned to the other party, through CARU, pursuant to Article 7, second and third paragraphs, of the 1975 Statute. This notification is intended to enable the notified party to participate in the process of ensuring that the assessment is complete, so that it can then consider the plan and its effects with a full knowledge of the facts (Article 8 of the 1975 Statute)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 59, para. 119.

International Responsibility – Environment – Role of inbuilt mechanism of negotiations in a bilateral treaty “The Court is aware that the negotiation provided for in Article 12 of the 1975 Statute forms part of the overall procedure laid down in Articles 7 to 12, which is structured in such a way that the parties, in association with CARU, are able, at the end of the process, to fulfil their obligation to prevent any significant transboundary harm which might be caused by potentially harmful activities planned by either one of them”.



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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 66, para. 139.

International Responsibility – Press reports “The Court considers that the information on the plans for the mills which reached CARU via the companies concerned or from other non-governmental sources cannot substitute for the obligation to inform laid down in Article 7, first paragraph, of the 1975 Statute, which is borne by the party planning to construct the works referred to in that provision. Similarly, in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the Court observed that “[i]f the information eventually came to Djibouti through the press, the information disseminated in this way could not be taken into account for the purposes of the application of Article 17 [of the Convention on Mutual Assistance in Criminal Matters between the two countries, providing that ‘[r]easons shall be given for any refusal of mutual assistance’]” ( Judgment, I.C.J. Reports 2008, p. 231, para. 150). Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 58, para. 110. Previous: Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 231, para. 150.

International Responsibility – Statements of states “Finally, on the third submission about the Johor reply amounting to a binding unilateral undertaking, the Court recalls that when it is claimed that “States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 44; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 47)”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 82, para. 229. Previous: Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 44. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 47.

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Sources and Rules of International Law Evidence – Weightage

“Given the purpose of the publications and their non-authoritative and essentially descriptive character, even if official, the Court does not consider that they can be given any weight”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 91, para. 262.

International Responsibility – Fulfilment of legal obligations in the execution of letter rogatory “A legal obligation to notify reasons for refusing to execute a letter rogatory is not fulfilled through the requesting State learning of the relevant documents only in the course of litigation, some long months later”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 231, para. 151.

International Responsibility – Execution of international letters rogatory in accordance with individual state’s procedure – No obligation of ensuring result on the state “The Court observes that the obligation to execute international letters rogatory laid down in Article 3 of the 1986 Convention is to be realized in accordance with the procedural law of the requested State. Thus, the ultimate treatment of a request for mutual assistance in criminal matters clearly depends on the decision by the competent national authorities, following the procedure established in the law of the requested State. While it must of course ensure that the procedure is put in motion, the State does not thereby guarantee the outcome, in the sense of the transmission of the file requested in the letter rogatory”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 222, para. 123.

Diplomatic privileges and immunities – International Responsibility – Scope of obligations of state “The Vienna Convention on Diplomatic Relations not only prohibits any infringements of the inviolability of the mission by the receiving State itself but also puts the receiving State under an obligation to prevent others – such as armed militia



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groups – from doing so (see United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 30–32, paras. 61–67)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 279, para. 342. Previous: United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 30–32, paras. 61–67.

International Responsibility – Obligation of occupying power “The Court further observes that the fact that Uganda was the occupying Power in Ituri district (see paragraph 178 above) extends Uganda’s obligation to take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory to cover private persons in this district and not only members of Ugandan military forces”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 253, para. 248.

International Responsibility – Use of force – Article 51 – Invitation to another state to assist in using force in self-defence “Article 51 of the Charter refers to the right of “individual or collective” selfdefence. The Court notes that a State may invite another State to assist it in using force in self-defence”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 218, para. 128.

International Responsibility – Obligation of result unconditionally – Non-performance constituting international wrongful act “The Avena Judgment nowhere lays down or implies that the courts in the United States are required to give direct effect to paragraph 153 (9). The obligation laid down in that paragraph is indeed an obligation of result which clearly must be performed unconditionally; non-performance of it constitutes internationally wrongful conduct. However, the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law. Nor moreover does the Avena Judgment prevent direct enforceability

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of the obligation in question, if such an effect is permitted by domestic law. In short, the question is not decided in the Court’s original Judgment and thus cannot be submitted to it for interpretation under Article 60 of the Statute (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44. Previous: Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402.

International Responsibility – Obligation of result on a party, however, choice of means including alternative means to be determined by the party “Before proceeding to the additional requests of Mexico, the Court observes that considerations of domestic law which have so far hindered the implementation of the obligation incumbent upon the United States, cannot relieve it of its obligation. A choice of means was allowed to the United States in the implementation of its obligation and, failing success within a reasonable period of time through the means chosen, it must rapidly turn to alternative and effective means of attaining that result”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 18, para. 47.

International Responsibility – Obligation to ensure result and role and responsibility of state organs “The Court observes it could be argued that the claim in paragraph 86 (a) (1) that the United States “acting through all its competent organs . . . must take all measures necessary to provide the reparation of review and reconsideration” does not say that there is an obligation of result falling upon the various competent organs, constituent subdivisions and public authorities, but only that the United States will act through these in itself fulfilling the obligations incumbent on it under paragraph 153 (9)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 16, para. 41.



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International Responsibility – Requirement of immediate cessation of conduct of wrongful nature “As far as the first of these three submissions is concerned, it should be recalled that when the Court has found that the conduct of a State is of a wrongful nature, and in the event that this conduct persists on the date of the judgment, the State concerned is obliged to cease it immediately. This obligation to cease wrongful conduct derives both from the general obligation of each State to conduct itself in accordance with international law and from the specific obligation upon States parties to disputes before the Court to comply with its judgments, pursuant to Article 59 of its Statute”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 148.

International Responsibility – Requirement of immediate cessation of conduct of wrongful nature – Operation of law “It is not necessary, and it serves no useful purpose as a general rule, for the Court to recall the existence of this obligation in the operative paragraphs of the judgments it renders: the obligation incumbent on the State concerned to cease such conduct derives by operation of law from the very fact that the Court establishes the existence of a violation of a continuing character”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 148.

International Responsibility – Requirement of immediate cessation of conduct of wrongful nature – Judgment – Operative paragraph inclusion – Court’s discretion “The Court may consider it appropriate, in special circumstances, to mention that obligation expressly in the operative part of its judgment. It sees no particular reason to do so in the present case”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 148.

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Sources and Rules of International Law International Responsibility – An imposition of a particular requirement (visa) a breach of the Treaty right

“The Court recalls that the power of a State to issue or refuse a visa entails discretion. However in the present case Nicaragua may not impose a visa requirement on those persons who, in line with what was stated in the preceding paragraph, may benefit from Costa Rica’s right of free navigation. If that benefit is denied, the freedom of navigation would be hindered. In these circumstances, an imposition of a visa requirement is a breach of the Treaty right”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 257, para. 115.

International Responsibility – Notification of adoption of regulation by one party to the other – Commercial purposes “It is difficult to see how the obligation, set out under the terms of the 1956 Agreement, to collaborate to facilitate traffic on the San Juan and to facilitate transport services being provided in the territory of one country by the nationals of the other could be met without Nicaragua notifying Costa Rica of relevant regulations which it adopts”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 252, para. 94.

International Responsibility – Obligation of a state to notify the other relevant regulations “The second factor indicating that Nicaragua is obliged to notify the adoption of the regulations lies in its very subject-matter: navigation on a river in which two States have rights, the one as sovereign, the other to freedom of navigation. Such a requirement arises from the practical necessities of navigation on such a waterway. If the various purposes of navigation are to be achieved, it must be subject to some discipline, a discipline which depends on proper notification of the relevant regulations”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 252, para. 95.



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International Responsibility – Purposes of notification of regulation by one party to the other “The third factor lies in the very nature of regulation. If the regulation is to subject the activity in question to rules, those undertaking that activity must be informed of those rules. Notification will assist in the better application of the regulation and the more effective pursuit of its purposes. Notification will also enable those subject to the regulation to bring facts within their particular knowledge to the attention of the appropriate authority and to suggest other ways of pursuing and achieving the relevant purpose”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 252, para. 96.

International Responsibility – Law of state responsibility “The first of these two questions relates to the well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State. This rule, which is one of customary international law, is reflected in Article 4 of the ILC Articles on State Responsibility as follows: The expression “State organ”, as used in customary international law and in Article 4 of the ILC Articles, applies to one or other of the individual or collective entities which make up the organization of the State and act on its behalf (cf. ILC Commentary to Art. 4, para. (1))”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 202, para. 385.

International Responsibility – Attribution – Act of a state organ placed at the disposal of another public authority “Furthermore, the Court notes that in any event the act of an organ placed by a State at the disposal of another public authority shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide,(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 204, para. 389.

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Sources and Rules of International Law International Responsibility – Attribution – Act of a state organ placed at the disposal of another public authority

“The Court has in fact already addressed this question, and given an answer to it in principle, in its Judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62–64). In paragraph 109 of that Judgment the Court stated that it had to “determine . . . whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (p. 62)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 204, para. 391. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 62–64.

International Responsibility – Acts of persons, groups of persons or entities “The passages quoted show that, according to the Court’s jurisprudence, persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 205, para. 392.

International Responsibility – Acts of persons, groups of persons or entities’ complete dependence on the State “However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of



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a particularly great degree of State control over them, a relationship which the Court’s Judgment quoted above expressly described as “complete dependence”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 205, para. 393.

International Responsibility – Acts of persons, groups of persons or entities’ complete dependence on the State – Commission of genocide “It remains to be determined in the present case whether, at the time in question, the persons or entities that committed the acts of genocide at Srebrenica had such ties with the FRY that they can be deemed to have been completely dependent on it; it is only if this condition is met that they can be equated with organs of the Respondent for the purposes of its international responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 205, para. 393.

International Responsibility – Essential test to establish complete dependence of persons, group of persons or entities “The Court must emphasize, at this stage in its reasoning, that the question just stated is not the same as those dealt with thus far. It is obvious that it is different from the question whether the persons who committed the acts of genocide had the status of organs of the Respondent under its internal law; nor however, and despite some appearance to the contrary, is it the same as the question whether those persons should be equated with State organs de facto, even though not enjoying that status under internal law. The answer to the latter question depends, as previously explained, on whether those persons were in a relationship of such complete dependence on the State that they cannot be considered otherwise than as organs of the State, so that all their actions performed in such capacity would be attributable to the State for purposes of international responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 207, para. 397.

International Responsibility – Complete dependence on state – Effective control of the military and paramilitary operations “This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military

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and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) referred to above (paragraph 391). In that Judgment the Court, as noted above, after having rejected the argument that the contras were to be equated with organs of the United States because they were “completely dependent” on it, added that the responsibility of the Respondent could still arise if it were proved that it had itself “directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State” (I.C.J. Reports 1986, p. 64, para. 115); this led to the following significant conclusion: “For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” (Ibid., p. 65)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 208, para. 399.

Test of effective control over persons, groups of persons and entities “The test thus formulated differs in two respects from the test – described above – to determine whether a person or entity may be equated with a State organ even if not having that status under internal law. First, in this context it is not necessary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of “complete dependence” on the respondent State; it has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 208, para. 400.

Lex specialis – Attribution of internationally wrongful act “The Court is however of the view that the particular characteristics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (see paragraph 399 above). The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis”.



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Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 208, para. 401.

Attribution of Genocide to a state – Customary international law “Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 209, para. 401.

Distinction between international armed conflict and state responsibility for a specific act in conflict “It should first be observed that logic does not require the same test to be adopted in resolving the two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 210, para. 405.

Scope of state responsibility – Overall control test “It must next be noted that the “overall control” test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 210, para. 406.

1038

Sources and Rules of International Law Scope of state responsibility – Overall control test – Limitations

“Apart from these cases, a State’s responsibility can be incurred for acts committed by persons or groups of persons – neither State organs nor to be equated with such organs – only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above (paragraph 398). This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide,(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 210, para. 406.

Complicity in the commission of criminal act – National and international criminal justice system and state responsibility “It is true that in certain national systems of criminal law, giving instructions or orders to persons to commit a criminal act is considered as the mark of complicity in the commission of that act. However, in the particular context of the application of the law of international responsibility in the domain of genocide, if it were established that a genocidal act had been committed on the instructions or under the direction of a State, the necessary conclusion would be that the genocide was attributable to the State, which would be directly responsible for it, pursuant to the rule referred to above (paragraph 398), and no question of complicity would arise”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 216, para. 419.

Definition of complicity “However there is no doubt that “complicity”, in the sense of Article III, paragraph (e), of the Convention, includes the provision of means to enable or facilitate the commission of the crime; it is thus on this aspect that the Court must focus. In this respect, it is noteworthy that, although “complicity”, as such, is not a notion which exists in the current terminology of the law of international responsibility, it is similar to a category found among the customary rules constituting the law



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of State responsibility, that of the “aid or assistance” furnished by one State for the commission of a wrongful act by another State”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 217, para. 419.

Procedural Laws Test of proof of an international penal tribunal and acceptance of jurisdiction of the tribunal by an accused “In order to determine whether the Respondent has fulfilled its obligations in this respect, the Court must first answer two preliminary questions: does the ICTY constitute an “international penal tribunal” within the meaning of Article VI? And must the Respondent be regarded as having “accepted the jurisdiction” of the tribunal within the meaning of that provision? ”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 227, para. 444.

Test of proof of an international penal tribunal “As regards the first question, the Court considers that the reply must definitely be in the affirmative. The notion of an “international penal tribunal” within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention (at which date no such court existed) of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III. The nature of the legal instrument by which such a court is established is without importance in this respect. When drafting the Genocide Convention, its authors probably thought that such a court would be created by treaty: a clear pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the] jurisdiction” of the international penal tribunal. Yet, it would be contrary to the object of the provision to interpret the notion of “international penal tribunal” restrictively in order to exclude from it a court which, as in the case of the ICTY, was created pursuant to a United Nations Security Council resolution adopted under Chapter VII of the Charter. The Court has found nothing to suggest that such a possibility was considered by the authors of the Convention, but no intention of seeking to exclude it can be imputed to them”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 227, para. 445.

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Sources and Rules of International Law Test of proof of an international penal tribunal and acceptance of jurisdiction of the tribunal by an accused

“The question whether the Respondent must be regarded as having “accepted the jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY constitutes both an obligation stemming from the resolution concerned and from the United Nations Charter, or from another norm of international law obliging the Respondent to co-operate, and an obligation arising from its status as a party to the Genocide Convention, this last clearly being the only one of direct relevance in the present case”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide,(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 227, para. 446.

Evidence Evidence – General “The Court will now comment in a general way on some of the other evidence submitted to it. Some of that evidence has been produced to prove that a particular statement was made so that the Party may make use of its content. In many of these cases the accuracy of the document as a record is not in doubt; rather its significance is. That is often the case for instance with official documents, such as the record of parliamentary bodies and budget and financial statements. Another instance is when the statement was recorded contemporaneously on audio or videotape. Yet another is the evidence recorded by the ICTY”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 134, para. 225.

Evidence – Individual testimony – Criminal trial “In some cases the account represents the speaker’s own knowledge of the fact to be determined or evaluated. In other cases the account may set out the speaker’s opinion or understanding of events after they have occurred and in some cases the account will not be based on direct observation but may be hearsay. In fact the Parties rarely disagreed about the authenticity of such material but rather about whether it was being accurately presented (for instance with contention



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that passages were being taken out of context) and what weight or significance should be given to it”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 135, para. 226.

Evidence – Value of reports from official or independent bodies “The Court was also referred to a number of reports from official or independent bodies, giving accounts of relevant events. Their value depends, among other things, on (1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 135, para. 227.

Evidence – Criminal trial procedure – Persuasive and consistent evidence for an atrocity pattern “The Court will also consider the facts alleged in the light of the question whether there is persuasive and consistent evidence for a pattern of atrocities, as alleged by the Applicant, which would constitute evidence of dolus specialis on the part of the Respondent”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 143, para. 242.

Evidence – Criminal trial procedure – Judicial task “For this purpose it is not necessary to examine every single incident reported by the Applicant, nor is it necessary to make an exhaustive list of the allegations; the Court finds it sufficient to examine those facts that would illuminate the question of intent, or illustrate the claim by the Applicant of a pattern of acts committed against members of the group, such as to lead to an inference from such pattern of the existence of a specific intent (dolus specialis)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 143, para. 242.

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Sources and Rules of International Law Evidentiary value of widespread reports

“In this respect the Court would recall the caveat it included in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, that “Widespread reports of a fact may prove on closer examination to derive from a single source, and such reports, however numerous, will in such case have no greater value as evidence than the original source.” (I.C.J. Reports 1986, p. 41, para. 63)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 190, para. 60.

Most grave form of the use of force – Lack of determining evidence “There is no evidence that the mine laying alleged to have been carried out by the Iran Air, at a time when Iran was at war with Iraq, was aimed specifically at the United States; and similarly it has not been established that the mine struck by the Bridgeton was laid with the specific intention of harming that ship, or other United States vessels. Even taken cumulatively, and reserving, as already noted, the question of Iranian responsibility, these incidents do not seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a “most grave” form of the use of force”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 192, para. 64.

Evidence – Probative value “The assessment made by the Court of the weight to be given to a particular item of evidence may lead to the Court rejecting the item as unreliable, or finding it probative, as appears from the practice followed for instance in the case concerning United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 9–10, paras. 1113; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 39–41, paras. 59–73; and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 200–201, paras. 57–61)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 130, para. 213.



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Previous: United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, pp. 9–10, para. 1113. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 39–41, paras. 59–73. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 200–201, paras. 57–61.

Evidence – Origin of and weightage to evidentiary material “In the most recent case the Court said this: “The Court will treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source. It will prefer contemporaneous evidence from persons with direct knowledge. It will give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). The Court will also give weight to evidence that has not, even before this litigation, been challenged by impartial persons for the correctness of what it contains. The Court moreover notes that evidence obtained by examination of persons directly involved, and who were subsequently cross-examined by judges skilled in examination and experienced in assessing large amounts of factual information, some of it of a technical nature, merits special attention. The Court thus will give appropriate consideration to the Report of the Porter Commission, which gathered evidence in this manner. The Court further notes that, since its publication, there has been no challenge to the credibility of this Report, which has been accepted by both Parties.” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 35, para. 61. See also paras. 78–79, 114 and 237–242)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 130, para. 213. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p.35, para.61. See also paras. 78–79, 114 and 237–242.

Evidence – Value of fact-finding process of an international tribunal – ICTY “The fact-finding process of the ICTY falls within this formulation, as “evidence obtained by examination of persons directly involved”, tested by crossexamination, the credibility of which has not been challenged subsequently”.

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 131, para. 214.

Evidence – Value of fact-finding process of an international tribunal – ICTY “In view of the above, the Court concludes that it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 134, para. 223.

Evidence – Burden of proof “On the burden or onus of proof, it is well established in general that the applicant must establish its case and that a party asserting a fact must establish it; as the Court observed in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), “it is the litigant seeking to establish a fact who bears the burden of proving it” ( Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 127, para. 200. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101.

Evidence – Necessity of fully conclusive proof “The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive (cf. Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 129, para. 209. Previous: Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 17.



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Evidence – Burden of proof “Under its Statute the Court has the capacity to undertake that task, while applying the standard of proof appropriate to charges of exceptional gravity (paragraphs 209–210 below). Turning to the terms of the Convention itself, the Court has already held that it has jurisdiction under Article IX to find a State responsible if genocide or other acts enumerated in Article III are committed by its organs, or persons or groups whose acts are attributable to it”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 119, para. 181.

*Peaceful Settlement of International Disputes *Dispute (The International) Peaceful settlement of international disputes – Urgent necessity for the UN to redouble efforts “The Court, being concerned to lend its support to the purposes and principles laid down in the United Nations Charter, in particular the maintenance of international peace and security and the peaceful settlement or disputes, would emphasize the urgent necessity for the United Nations as a whole to redouble its efforts to bring the Israeli-Palestinian conflict, which continues to pose a threat to international peace and security, to a speedy conclusion, thereby establishing a just and lasting peace in the region”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 200, para. 161.

Peaceful settlement of disputes – Article 33 of the UN Charter “It also notes that Article 29 of this Convention gives the Court jurisdiction in respect of any dispute between States parties concerning its interpretation or application, on condition that: it has not been possible to settle the dispute by negotiation; that, following the failure of negotiations, the dispute has, at the request of one such State, been submitted to arbitration; and that, if the parties have been unable to agree on the organization of the arbitration, a period of six months has elapsed from the date of the request for arbitration. In the view of the Court, it is apparent from the language of Article 29 of the Convention that these conditions are cumulative”.

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Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 39, para. 87.

International dispute – Conditions of existence “Whereas, at the stage of considering prima facie jurisdiction, it is sufficient for the Court to note that an attempt has been made by Belgium to negotiate; whereas, it considers that the diplomatic correspondence, in particular the Note Verbale of 11 January 2006, whereby Belgium wished to submit certain clarifications to the Government of Senegal “within the framework of the negotiation procedure covered by Article 30 of the Convention against Torture . . .”, shows that Belgium attempted to resolve the said dispute by negotiation and that it cannot be concluded that the negotiations thus proposed had the effect of resolving the dispute; and whereas the Court thus concludes that the requirement that the dispute is one which “cannot be settled through negotiation” must be regarded as having been satisfied prima facie”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 150, para. 50.

International dispute – Pursuit of parallel procedures “Whereas, at the stage of considering prima facie jurisdiction, it is sufficient for the Court to note that an attempt has been made by Belgium to negotiate; whereas, it considers that the diplomatic correspondence, in particular the Note Verbale of 11 January 2006, whereby Belgium wished to submit certain clarifications to the Government of Senegal “within the framework of the negotiation procedure covered by Article 30 of the Convention against Torture . . .”, shows that Belgium attempted to resolve the said dispute by negotiation and that it cannot be concluded that the negotiations thus proposed had the effect of resolving the dispute; and whereas the Court thus concludes that the requirement that the dispute is one which “cannot be settled through negotiation” must be regarded as having been satisfied prima facie”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 150, para. 50.

International dispute – Critical date “Whereas, in the view of the Court, the Note Verbale of 20 June 2006 contains an explicit offer from Belgium to Senegal to have recourse to arbitration, pursuant to



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Article 30, paragraph 1, of the Convention against Torture, in order to settle the dispute concerning the application of the Convention in the case of Mr. Habré; whereas, at this stage of the proceedings, it is sufficient for the Court to note that, even supposing that the said Note Verbale never reached its addressee, the Note Verbale of 8 May 2007 explicitly refers to it; and whereas it has been confirmed that this second Note was communicated to Senegal and received by it more than six months before the date of referral to the Court, i.e., 19 February 2009”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 150, para. 52.

The International Dispute: Existence of a Dispute – Determination “The Court cannot accept the United States objections. The dispute between the Parties as to whether Article 36, paragraph 1 (a) and (c), of the Vienna Convention have been violated in this case in consequence of the breach of paragraph 1 (b) does relate to the interpretation and application of the Convention. This is also true of the dispute as to whether paragraph 1 (b) creates individual rights and whether Germany has standing to assert those rights on behalf of its nationals. These are consequently disputes within the meaning of Article I of the Optional Protocol. Moreover, the Court cannot accept the contention of the United States that Germany’s claim based on the individual rights of the LaGrand brothers is beyond the Court’s jurisdiction because diplomatic protection is a concept of customary international law. This fact does not prevent a State party to a treaty, which creates individual rights, from taking up the case of one of its nationals and instituting international judicial proceedings on behalf of that national, on the basis of a general jurisdictional clause in such a treaty. Therefore the Court concludes that it has jurisdiction with respect to the whole of Germany’s first submission”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 482, para. 42.

Part II Law of Procedure

Chapter I The Peaceful Settlement of International Disputes Sub Chapter I The International Dispute The International Dispute – Means and Procedures of peaceful settlement “The Court’s lack of jurisdiction does not relieve States of their obligation to settle their disputes by peaceful means. The choice of those means admittedly rests with the parties under Article 33 of the United Nations Charter. They are nonetheless under an obligation to seek such a settlement, and to do so in good faith in accordance with Article 2, paragraph 2, of the Charter”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 33, para. 53.

The Peaceful Settlement of International Disputes – The International Dispute – Definition “The Court considers that a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court’s jurisdiction. Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation (Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22). Consequently, the Court has jurisdiction in the present case with respect to the fourth submission of Germany”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 485, para. 48. Previous: Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22.

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The Peaceful Settlement of International Disputes The Peaceful Settlement of International Disputes – The International Dispute – Existence of Dispute – Conditions of Existence

“The Court considers that a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court’s jurisdiction. Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation (Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22). Consequently, the Court has jurisdiction in the present case with respect to the fourth submission of Germany”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 485, para. 48. Previous: Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22.

The Peaceful Settlement of International Disputes – The International Dispute – Jurisdiction – Basis of jurisdiction – Extent “The Court considers that a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and thus is within the Court’s jurisdiction. Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation (Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22). Consequently, the Court has jurisdiction in the present case with respect to the fourth submission of Germany”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 485, para. 48. Previous: Factory at Chorzow, P.C.I.J., Series A, No. 9, p. 22.

The Peaceful Settlement of International Disputes – The International Dispute – Judicial Function – Inherent Limitations “Although Germany deals extensively with the practice of American courts as it bears on the application of the Convention, all three submissions seek to require the Court to do no more than apply the relevant rules of international law to the issues in dispute between the Parties to this case. The exercise of this function,



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expressly mandated by Article 38 of its Statute, does not convert this Court into a court of appeal of national criminal proceedings”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 486, para. 52.

The Peaceful Settlement of International Disputes – The International Dispute – Procedure – Application – Time-Limit “The Court recognizes that Germany may be criticized for the manner in which these proceedings were filed and for their timing. The Court recalls, however, that notwithstanding its awareness of the consequences of Germany’s filing at such a late date it nevertheless considered it appropriate to enter the Order of 3 March 1999, given that an irreparable prejudice appeared to be imminent. In view of these considerations, the Court considers that Germany is now entitled to challenge the alleged failure of the United States to comply with the Order. Accordingly, the Court finds that Germany’s third submission is admissible”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 486, para. 57.

The Peaceful Settlement of International Disputes – The International Dispute – Procedure – Application – Critical Date “The Court recognizes that Germany may be criticized for the manner in which these proceedings were filed and for their timing. The Court recalls, however, that notwithstanding its awareness of the consequences of Germany’s filing at such a late date it nevertheless considered it appropriate to enter the Order of 3 March 1999, given that an irreparable prejudice appeared to be imminent. In view of these considerations, the Court considers that Germany is now entitled to challenge the alleged failure of the United States to comply with the Order. Accordingly, the Court finds that Germany’s third submission is admissible”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 486, para. 57.

Sub Chapter II Diplomatic Means of Settlement of Disputes Dispute settlement – Conduct of parties for meaningful negotiation “The Court has also had occasion to draw attention to the characteristics of the obligation to negotiate and to the conduct which this imposes on the States concerned: ‘[the Parties] are under an obligation so to conduct themselves that the negotiations are meaningful’ (North Sea Continental Shelf (Federal Republic of

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Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 67, para. 146. Previous: Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85).

Dispute settlement – Role of negotiations “In the view of the Court, there would be no point to the co-operation mechanism provided for by Articles 7 to 12 of the 1975 Statute if the party initiating the planned activity were to authorize or implement it without waiting for that mechanism to be brought to a conclusion. Indeed, if that were the case, the negotiations between the parties would no longer have any purpose”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 67, para. 147.

Obligation of negotiation not necessarily obligation to reach an agreement “Given that ‘an obligation to negotiate does not imply an obligation to reach an agreement’ (Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116), it remains for the Court to examine whether the State initiating the plan is under certain obligations following the end of the negotiation period provided for in Article 12”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 68, para. 150. Previous: Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42, p. 116.

Negotiation – Post-judgment situation – Obligation of parties to determine agreed solution based on the findings of the Court’s judgment “It is not for the Court to determine the final result of these negotiations to be conducted by the Parties. In such negotiations, the Parties should seek in good faith an agreed solution based on the findings of the present Judgment”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 257, para. 261.



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Article 33 of the UN Charter – Negotiation – Outcome of negotiation “However, Articles 74 and 83 of the United Nations Law of the Sea Convention do not require that delimitation negotiations should be successful; like all similar obligations to negotiate in international law, the negotiations have to be conducted in good faith. The Court reaffirms its finding in regard to the preliminary objections that negotiations have indeed taken place”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 422, para. 239.

Outcome of negotiation and initiation of judicial proceedings “Moreover, if, following unsuccessful negotiations, judicial proceedings are instituted and one of the parties then alters its claim, Articles 74 and 83 of the Law of the Sea Convention would not require that the proceedings be suspended while new negotiations were conducted. It is of course true that the Court is not a negotiating forum. In such a situation, however, the new claim would have to be dealt with exclusively by judicial means. Any other solution would lead to delays and complications in the process of delimitation of continental shelves and exclusive economic zones. The Law of the Sea Convention does not require such a suspension of the proceedings”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 424, para. 244.

Limitation of the Court – The Court is not a negotiating forum “Moreover, if, following unsuccessful negotiations, judicial proceedings are instituted and one of the parties then alters its claim, Articles 74 and 83 of the Law of the Sea Convention would not require that the proceedings be suspended while new negotiations were conducted. It is of course true that the Court is not a negotiating forum. In such a situation, however, the new claim would have to be dealt with exclusively by judicial means. Any other solution would lead to delays and complications in the process of delimitation of continental shelves and exclusive economic zones. The Law of the Sea Convention does not require such a suspension of the proceedings”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 424, para. 244.

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UN Law of the Sea Convention – Delays and complications in the delimitation process – No requirement to suspend proceedings “Moreover, if, following unsuccessful negotiations, judicial proceedings are instituted and one of the parties then alters its claim, Articles 74 and 83 of the Law of the Sea Convention would not require that the proceedings be suspended while new negotiations were conducted. It is of course true that the Court is not a negotiating forum. In such a situation, however, the new claim would have to be dealt with exclusively by judicial means. Any other solution would lead to delays and complications in the process of delimitation of continental shelves and exclusive economic zones. The Law of the Sea Convention does not require such a suspension of the proceedings”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 424, para. 244.

Dispute settlement – Use of diplomacy – Article 33 of the UN Charter “As in previous cases involving virtually identical treaty provisions (see United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pp. 26–28; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, pp. 427–429), it is sufficient for the Court to satisfy itself that the dispute was not satisfactorily adjusted by diplomacy before being submitted to the Court”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 210, para. 107. Previous: United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pp. 26–28; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, pp. 427–429.

Diplomatic means of settlement of disputes – Negotiation – Obligation to negotiate “Whereas, at the stage of considering prima facie jurisdiction, it is sufficient for the Court to note that an attempt has been made by Belgium to negotiate; whereas, it considers that the diplomatic correspondence, in particular the Note Verbale of 11 January 2006, whereby Belgium wished to submit certain clarifications to the Government of Senegal ‘within the framework of the negotiation procedure covered by Article 30 of the Convention against Torture . . .’, shows that Belgium attempted to resolve the said dispute by negotiation and that it cannot



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be concluded that the negotiations thus proposed had the effect of resolving the dispute; and whereas the Court thus concludes that the requirement that the dispute is one which ‘cannot be settled through negotiation’ must be regarded as having been satisfied prima facie”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 150, para. 50.

Sub Chapter III Arbitration Sub Chapter IV Judicial Settlement, the International Court of Justice Judicial Task Judicial Settlement – The International Court of Justice – Judicial function – General observations “The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and, in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 502, para. 102.

Judicial settlement – The International Court of Justice – Procedure – Object “The Court has already acknowledged, on several occasions in the past, that events subsequent to the filing of an application may ‘render an application without object’ (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66), and

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‘therefore the Court is not called upon to give a decision thereon’ (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 62) (cf. Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38)”. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 26, para. 46. Previous: Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 272, para. 62. Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 38.

Judicial task “It is for the Court to determine whether the Respondent is responsible for any acts of genocide which may be established. For purposes of a finding of this kind the Court may take into account any statements made by either party that appear to bear upon the matters in issue, and have been brought to its attention (cf. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 263ff., paras. 32ff., and Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, pp. 465ff., paras. 27ff.; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 573–574, paras. 38–39), and may accord to them such legal effect as may be appropriate”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 199, para. 378. Previous: Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 263 ff., paras. 32 ff. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, pp. 465 ff., paras. 27 ff. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 573–574, paras. 38–39.

Judicial task of the Court “The Court must itself make its own determination of the facts which are relevant to the law which the Applicant claims the Respondent has breached. This case does however have an unusual feature. Many of the allegations before this Court have already been the subject of the processes and decisions of the ICTY”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 130, para. 212.



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International dispute settlement – ICJ and other international courts and tribunals “The different procedures followed by, and powers available to, this Court and to the courts and tribunals trying persons for criminal offences, do not themselves indicate that there is a legal bar to the Court itself finding that genocide or the other acts enumerated in Article III have been committed”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 119, para. 181.

Judicial task of the court “Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to ‘decide’, that is, to bring to an end, ‘such disputes as are submitted to it’. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 116.

Breach of principle of legal settlement of disputes “Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to ‘decide’, that is, to bring to an end, ‘such disputes as are submitted to it’. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 116.

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The Peaceful Settlement of International Disputes Specific submission of the parties – Judicial task

“In the present case, the Parties have acknowledged the existence and validity of the instruments whose purpose was to effect the delimitation between their respective territories; moreover, both Parties have insisted time and again that they are not asking the Court to carry out demarcation operations, for which they themselves will be responsible at a later stage. The Court’s task is thus neither to effect a delimitation de novo of the boundary nor to demarcate it”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 359, para. 84.

Judicial task “The Court’s task is accordingly to determine where the drafters of the ThomsonMarchand Declaration intended the boundary to run in this area when they described it as following the course of a river called ‘Kohom’ ”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 366, para. 100.

Judicial task “The question upon which the Parties differ is the nature of the task which the Court should undertake”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 357, para. 77.

Definition of dispute “The Permanent Court of International Justice stated that ‘a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests’ (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 40, para. 90. Previous: Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.



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Definition of the dispute “According to the consistent jurisprudence of the Court and the Permanent Court of International Justice, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties (see Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11; Northern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 27; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27, para. 35; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99–100, para. 22). Moreover, for the purposes of verifying the existence of a legal dispute it falls to the Court to determine whether ‘the claim of one party is positively opposed by the other’ (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328)”. Certain Property (Liechtenstein v. Germany), Preliminary Objections, I.C.J. Reports, p. 16, para. 19. Previous: Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11. Northern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 27. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27, para. 35. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99–100, para. 22. South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.

Precise task of the court remains undetermined even at the end of the oral proceedings “Independently of the issues which have just been mentioned, a problem has continued to divide the Parties in regard to the land boundary. It concerns the nature and extent of the role which the Court is called upon to play in relation to the sectors of the land boundary in respect of which there has been disagreement between the Parties at various stages of the proceedings, either on the ground that the relevant instruments of delimitation were claimed to be defective or because the interpretation of those instruments was disputed. The Court notes that, while the positions of the Parties on this issue have undergone a significant change and have clearly become closer in the course of the proceedings, they still appear unable to agree on what the Court’s precise task should be in this regard”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 359, para. 83.

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Transformation of a dispute into a dispute of different nature during the course of proceedings not allowed “It is well established in the Court’s jurisprudence that the parties to a case cannot in the course of proceedings ‘transform the dispute brought before the Court into a dispute that would be of a different nature’ (Certain Phosphate Lands in Nauru (Nauru v. Australia). Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 265, para. 63)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 213, para. 117. Previous: Certain Phosphate Lands in Nauru (Nauru v. Australia). Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 265, para. 63.

Determination of existence of a dispute – Obligation of a claimant state “In order to establish the existence of a dispute, ‘it must be shown that the claim of one party is positively opposed by the other’ (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and further, ‘Whether there exists an international dispute is a matter for objective determination’ (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).’ (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 17, para. 22; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 122–123, para. 21; Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 18, para. 24)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 40, para. 90. Previous: East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 100, para. 22. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 17, para. 22. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 122–123, para. 21. Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 18, para. 24.



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Jurisdiction – Judicial task of the court “A distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.’ (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36; emphasis in the original)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 85, para. 102. Previous: Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36.

Judicial task of the court – Existence of dispute “It is for the Court itself to decide whether a dispute within the meaning of Article 60 of the Statute does indeed exist (see Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 12)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 12, para. 29. Previous: Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 12.

Judicial task “[I]n cases where the breach of the individual rights of Mexican nationals under Article 36, paragraph 1 (b), of the [Vienna Convention on Consular Relations] has resulted, in the sequence of judicial proceedings that has followed, in the

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individuals concerned being subjected to prolonged detention or convicted and sentenced to severe penalties, the legal consequences of this breach have to be examined and taken into account in the course of review and reconsideration. The Court considers that it is the judicial process that is suited to this task.’ (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65–66, para. 140)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 14, para. 31. Previous: Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65–66, para. 140.

Determination of existence of a dispute – Judicial task of the Court “According to the consistent jurisprudence of the Court and the Permanent Court of International Justice, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties (see Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11; Northern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 27; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27, para. 35; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99–100, para. 22). Moreover, for the purposes of verifying the existence of a legal dispute it falls to the Court to determine whether ‘the claim of one party is positively opposed by the other’ (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328)”. Certain Property (Liechtenstein v. Germany), Preliminary Objections, I.C.J. Reports, p. 16, para. 19. Previous: Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11. Northern Cameroons, Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 27. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27, para. 35. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99–100, para. 22. South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.

Circumstances and source of causes of the dispute “A situation or fact in regard to which a dispute is said to have arisen must be the real cause of the dispute. In the present case it is the subsequent acts with which



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the Belgian Government reproaches the Bulgarian authorities with regard to a particular application of the formula – which in itself has never been disputed – which form the centre point of the argument and must be regarded as constituting the facts with regard to which the dispute arose.’ (Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, p. 82)”. Certain Property (Liechtenstein v. Germany), Preliminary Objections, I.C.J. Reports, p. 23, para. 41. Previous: Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, p. 82.

Dispute – Source or real causes of the dispute “. . . [t]he facts or situations to which regard must be had . . . are those with regard to which the dispute has arisen or, in other words, as was said by the Permanent Court in the case concerning the Electricity Company of Sofia and Bulgaria, only ‘those which must be considered as being the source of the dispute’, those which are its ‘real cause’ (Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 35)”. Certain Property (Liechtenstein v. Germany), Preliminary Objections, I.C.J. Reports, p. 25, para. 44. Previous: Right of Passage aver Indian Territory, Merit’s, Judgment, I.C.J. Reports 1960, p. 35.

Judicial task – Distinction between admissibility and jurisdiction “The Court recalls at the outset that admissibility is distinct from jurisdiction. In the current instance the Court is dealing with the question of admissibility. It is further recalled that it is for the Court to determine in the light of the circumstances of each case whether an application is admissible (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240). Under Article 40, paragraph 1, of the Statute of the Court, the ‘subject of the dispute’ must be indicated in the Application; as established in the Court’s jurisprudence, an additional claim must have been implicit in the Application (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 36) or must arise ‘directly out of the question which is the subject-matter of that Application’ (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72)”. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 264, para. 137.

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Previous: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240. Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 36. Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72.

Provisional measures – Binding effect “In its Judgment of 27 June 2001 in the LaGrand case (Germany v. United States of America), the Court reached ‘the conclusion that orders on provisional measures under Article 41 [of the Statute] have binding effect’ (I.C.J. Reports 2001, p. 506, para. 109)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 453, para. 321. Previous: LaGrand case (Germany v. United States of America), I.C.J. Reports 2001, p. 506, para. 109.

Preliminary Objections Judicial settlement – the International Court of Justice – Judicial Procedure: Preliminary stage of the proceedings – Preliminary objections, General Considerations “The Court must satisfy itself that such an objection does indeed fall within the provisions of Article 79 of the Rules, relied upon by the Respondent. In paragraph 1, this Article refers to ]Any objection . . . to the jurisdiction of the Court or to the admissibility of the application, or other objection’ (emphasis added); its field of application ratione materiae is thus not limited solely to objections regarding jurisdiction and admissibility. However, if it is to be covered by Article 79, an objection must also possess a ‘preliminary’ character. Paragraph 1 of Article 79 of the Rules of Court characterizes as ‘preliminary’ an objection ‘the decision upon which is requested before any further proceedings’. There can be no doubt that the objection envisaged here formally meets this condition. The Court would also recall that, in this instance, the Respondent is advancing the argument that the decisions of the Security Council could not form the subject of any contentious proceedings before the Court, since they allegedly determine the rights which the Applicant claims to derive from a treaty text, or at least that they directly affect those rights; and that the Respondent thus aims to preclude at the outset any consideration by the Court of the claims submitted by the Applicant and immediately terminate the proceedings brought by it. In so far as the purpose of



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the objection raised by the United States that there is no ground for proceeding to judgment on the merits is, effectively, to prevent, in limine, any consideration of the case on the merits, so that its ‘effect [would] be, if the objection is upheld, to interrupt further proceedings in the case’, and ‘it [would] therefore be appropriate for the Court to deal with [it] before enquiring into the merits’ (Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.Ι.J., Series A/B, No. 76, p. 16), this objection possesses a preliminary character and does indeed fall within the provisions of Article 79 of the Rules of Court. Moreover it is incontrovertible that the objection concerned was submitted in writing within the time-limit fixed for the filing of the Counter-Memorial, and was thus submitted in accordance with the formal conditions laid down in Article 79”. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 26, para. 47. Previous: Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.Ι.J., Series A/B, No. 76, p. 16.

Judicial settlement – the International Court of Justice – Judicial Procedure: Preliminary stage of the proceedings – the solution adopted in 1972 and maintained in the 1978 Rules of Court “The present wording of Article 79, paragraph 7, of the Rules of Court was adopted by the Court in 1972. The Court has had occasion to examine its precise scope and significance in the Judgments it delivered in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), on 26 November1984 (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 425–426) and on 26 June 1986 (Merits, Judgment, I.C.J. Reports 1986, pp. 29–31), respectively. As the Court pointed out in the second of those Judgments,’ Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the power to join an objection to the merits ‘whenever the interests of the good administration of justice require it’ (Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56), and in particular where the Court, if it were to decide on the objection, ‘would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution’ (ibid.).’ (I.C.J. Reports 1986, pp. 29–30, para. 39). However, the exercise of that power carried a risk, ‘namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties to fully plead the merits – and this did in fact occur (Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3). The result

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was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure.’ (ibid., p. 30, para. 39)”. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 27, para. 49. Previous: Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56. Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 3. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ( Jurisdiction and Admissibility), Judgment, I.C.J. Reports 1984, pp. 425–426); and (Merits, Judgment, I.C.J. Reports 1986, pp. 29–31).

Judicial settlement – the International Court of Justice – Judicial Procedure – Preliminary stage of the proceedings – Joinder to the merits – the solution adopted in 1972 and maintained in the 1978 Rules of Court “The Court was then faced with the following choice: ‘to revise the Rules so as to exclude . . . the possibility of joinder to the merits, so that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flexible’ (ibid., p. 30, para. 40). The solution adopted in 1972 was ultimately not to exclude the power to examine a preliminary objection in the merits phase, but to limit the exercise of that power, by laying down the conditions more strictly. The Court concluded, in relation to the new provision thus adopted: ‘It thus presents one clear advantage: that it qualifies certain objections as preliminary, making it quite clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage.’ (Ibid., p. 31, para. 41)”. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 28, para. 49.

Judicial settlement – the International Court of Justice – Judicial Procedure – Preliminary stage of the proceedings – Points of Merits “That objection relates to many aspects of the dispute. By maintaining that Security Council resolutions 748 (1992) and 883 (1993) have rendered the Libyan claims without object, the United States seeks to obtain from the Court a decision



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not to proceed to judgment on the merits, which would immediately terminate the proceedings. However, by requesting such a decision, the United States is requesting, in reality, at least two others which the decision not to proceed to judgment on the merits would necessarily postulate: on the one hand a decision establishing that the rights claimed by Libya under the Montreal Convention are incompatible with its obligations under the Security Council resolutions; and, on the other hand, a decision that those obligations prevail over those rights by virtue of Articles 25 and 103 of the Charter. The Court therefore has no doubt that Libya’s rights on the merits would not only be affected by a decision not to proceed to judgment on the merits, at this stage in the proceedings, but would constitute, in many respects, the very subject-matter of that decision. The objection raised by the United States on that point has the character of a defence on the merits. In the view of the court, this objection does much more than’ touch[ing] upon subjects belonging to the merits of the case’ (Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 15); it is ‘inextricably interwoven’ with the merits (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 46)”. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 28, para. 50. Previous: Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 15. Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 46.

The Peaceful Settlement of International Disputes – The International Dispute – Procedure – Decision on an Objection to Admissibility “The Court notes that it is not disputed that the LaGrands sought to plead the Vienna Convention in United States courts after they learned in 1992 of their rights under the Convention; it is also not disputed that by that date the procedural default rule barred the LaGrands from obtaining any remedy in respect of the violation of those rights. Counsel assigned to the LaGrands failed to raise this point earlier in a timely fashion. However, the United States may not now rely before this Court on this fact in order to preclude the admissibility of Germany’s first submission, as it was the United States itself which had failed to carry our its obligation under the Convention to inform the LaGrand brothers”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 488, para. 60.

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“The jurisdiction of the Court is founded on Article IX of the [Genocide] Convention, and the disputes subject to that jurisdiction are those ‘relating to the interpretation, application or fulfilment’ of the Convention, but it does not follow that the Convention stands alone. In order to determine whether the Respondent breached its obligation under the Convention . . . To confirm the meaning resulting from that process or to remove ambiguity or obscurity or a manifestly absurd or unreasonable result, the supplementary means of interpretation to which recourse may be had include the preparatory work of the Convention and the circumstances of its conclusion. Those propositions, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, are well recognized as part of customary international law: see Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, para. 94; case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 48, para. 83; LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99; and Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37, and the other cases referred to in those decisions”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 110, para. 160. Previous: Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, para. 94. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 48, para. 83. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 99. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37.

Judicial Settlement – the International Court of Justice – Jurisdiction – Basis of Jurisdiction – Declarations of acceptance of the compulsory jurisdiction – extent “On this point, the Court recalls in the first place that its jurisdiction only exists within the limits within which it has been accepted”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 29, para. 36. Previous: Phosphates in Morocco, Judgment, 1938, P.C.I.J. Series A/B, No. 74, p. 23.



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Judicial Settlement – the International Court of Justice – Jurisdiction – Basis of Jurisdiction – Declarations of acceptance of the compulsory jurisdiction – legal nature “As the Court pointed out in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of ’ America): ‘[d]eclarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 29, para. 36. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of’ America), I.C.J. Reports 1984, p. 418, para. 59.

Judicial Settlement – the International Court of Justice – Jurisdiction – Basis of Jurisdiction – Declarations of acceptance of the compulsory jurisdiction – conditions of validity “The Court would further observe that paragraph 3 of Article 36 of its Statute has never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 29, para. 37.

Basis of jurisdiction – Reservations – Multilateral Treaty Reservation “Moreover, when the Statute of the present Court was being drafted, the right of a State to attach reservations to its declaration was confirmed, and it was indeed considered unnecessary to clarify the terms of Article 36, paragraph 3, of the Statute on this point: ‘The question of reservations calls for an explanation. As is well known, the article has consistently been interpreted in the past as allowing states accepting the jurisdiction of the Court to subject their declarations to reservations. The Subcommittee has considered such interpretation as being henceforth established. It has therefore been considered unnecessary to modify paragraph 3 in order to make express reference to the right of the states to make such reservations.’ (Report of Sub-Committee D to Committee IVII on Article 36

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of the Statute of the International Court of Justice, 31 May 1945, UNCIO, Vol. XIII, p. 559)”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 29, para. 37.

Basis of jurisdiction – Reservations – Multilateral Treaty Reservation “The Court notes that this right has been recognized in the practice of States, which attach to their declarations of acceptance of the jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute reservations enabling them to define ‘the parameters of [that] acceptance’ (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 453, para. 44). Indeed, since 1929 a number of Commonwealth States have formulated reservations concerning other Commonwealth members, and such reservations are currently to be found in the declarations of eight of those States”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 30, para. 38. Previous: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 453, para. 44.

Judicial Settlement – the International Court of Justice – Jurisdiction – Basis of Jurisdiction – Declarations of acceptance of the compulsory jurisdiction – extent “Nor can the Court accept Pakistan’s argument that India’s reservation was a discriminatory act constituting an abuse of right because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court. It notes in the first place that the reservation refers generally to States which are or have been members of the Commonwealth. It would add, as it recalled in paragraphs 36 to 39 above, that States are in any event free to limit the scope ratione personae which they wish to give to their acceptance of the compulsory jurisdiction of the Court”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 30, para. 40.



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Judicial Settlement, the ICJ – Jurisdiction – Consent of States – Reservation “Moreover, as the Court stated in the case concerning Fisheries Jurisdiction (Spain v. Canada), it ‘will . . . interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court’ (I.C.J. Reports 1998, p. 454, para. 49).” Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 31, para. 42. Previous: Fisheries Jurisdiction (Spain v. Canada), (I.C.J. Reports 1998, p. 454, para. 49.

Basis of jurisdiction – Estoppel “Pakistan has further argued, in the alternative, that, if the reservation were held to be valid, India would in any event be prevented from relying upon it against Pakistan by the operation of estoppel. For this purpose, Pakistan has cited Article 1 of the Simla Accord, paragraph (ii) of which provides inter alia that ‘the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them . . .’. The Court regards this provision as an obligation, generally, on the two States to settle their differences by peaceful means, to be mutually agreed by them. The said provision in no way modifies the specific rules governing recourse to any such means, including judicial settlement. Thus the Court cannot interpret that obligation as precluding India from relying, in the present case, on the Commonwealth reservation contained in its declaration. The Court cannot therefore accept the argument in the present case based on estoppel”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 31, para. 45.

Basis of jurisdiction – Multilateral Treaties – Reservation “Pakistan has further argued, in the alternative, that, if the reservation were held to be valid, India would in any event be prevented from relying upon it against Pakistan by the operation of estoppel. For this purpose, Pakistan has cited Article 1 of the Simla Accord, paragraph (ii) of which provides inter alia that ‘the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them . . .’. The Court regards this provision as an obligation, generally, on the two States to settle their differences by peaceful means, to be mutually agreed by

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them. The said provision in no way modifies the specific rules governing recourse to any such means, including judicial settlement. Thus the Court cannot interpret that obligation as precluding India from relying, in the present case, on the Commonwealth reservation contained in its declaration. The Court cannot therefore accept the argument in the present case based on estoppel”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 31, para. 45.

Basis of jurisdiction – UN Charter – Compulsory jurisdiction “The Court observes that the United Nations Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court. In particular, there is no such provision in Articles 1, paragraph L 2, paragraphs 3 and 4, 33, 36, paragraph 3, and 92 of the Charter, relied on by Pakistan”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 32, para. 47.

Basis of jurisdiction – Distinction between acceptance of jurisdiction and state responsibility for violation of obligations “Finally, the Court would recall that ‘[t]here is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law . . . Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States.’ (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456, paras. 55–56)”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 33, para. 51. Previous: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456, paras. 55–56.

Judicial Function – Consistency with the pursuit of parallel procedures “As the Permanent Court of International Justice had already observed in 1929, and as the present Court has reaffirmed, ‘the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties; . . . consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement’ (Case concerning the Free



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Zones of Upper Savoy), and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13; see also Frontier Dispute (Burkina Faso v. Republic of Mali), I.C.J. Reports 1986, p. 577, para. 46, and Passage through the Great Belt (Finland v. Denmark), I.C.J. Reports 1991, p. 20)”. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment, I.C.J. Reports 2000, p. 33, para. 52. Previous: (Case concerning the Free Zones of Upper Savoy), and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13. Frontier Dispute (Burkina Faso v. Republic of Mali), I.C.J. Reports 1986, p. 577, para. 46. Passage through the Great Belt (Finland v. Denmark), I.C.J. Reports 1991, p. 20.

Judicial settlement – the International Court of Justice – Basis of Jurisdiction – Effects of caducity “The Court cannot uphold this line of argument. Security Council resolutions 748 (1992) and 883 (1993) were in fact adopted after the filing of the Application on 3 March 1992. In accordance with its established jurisprudence, if the Court had jurisdiction on that date, it continues to do so; the subsequent coming into existence of the above-mentioned resolutions cannot affect its jurisdiction once established (cf. Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122; Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142)”. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 23, para. 36. Previous: Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 122. Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142.

Basis of jurisdiction – Practice “Whereas, moreover, the prima facie jurisdiction which the Court derives from the Convention against Torture is sufficient to enable it, if the circumstances so require, to indicate the provisional measures requested by Belgium; and whereas consequently there is no need to ascertain, at this stage of the proceedings, whether the declarations made by the Parties pursuant to Article 36, paragraph 2, of the Statute might also, prima facie, afford a basis on which the Court’s jurisdiction could be founded”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 54.

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The Peaceful Settlement of International Disputes Basis of jurisdiction – Practice – additional grounds

“Whereas, moreover, the prima facie jurisdiction which the Court derives from the Convention against Torture is sufficient to enable it, if the circumstances so require, to indicate the provisional measures requested by Belgium; and whereas consequently there is no need to ascertain, at this stage of the proceedings, whether the declarations made by the Parties pursuant to Article 36, paragraph 2, of the Statute might also, prima facie, afford a basis on which the Court’s jurisdiction could be founded”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 54.

Jurisdiction – proprio motu “The Court recalls that, as it has stated in the case of the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), it ‘must however always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu’ ( Judgment, I.C.J. Reports 1972, p. 52, para. 13)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 91, para. 118.

Jurisdiction – Consent of the parties “The jurisdiction of the Court is founded on the consent of the parties. The Court cannot therefore decide upon legal rights of third States not parties to the proceedings. In the present case there are States other than the parties to these proceedings whose rights might be affected, namely Equatorial Guinea and Sao Tome and Principe. Those rights can not be determined by decision of the Court unless Equatorial Guinea and Sao Tome and Principe have become parties to the proceedings”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 421, para. 238.



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Preliminary objection – Absence of express reference to lack of jurisdiction – Not an acknowledgment of the jurisdiction “The fact that in its Order of 10 July 2002 the Court did not conclude that it manifestly lacked jurisdiction cannot therefore amount to an acknowledgment that it has jurisdiction”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 20, para. 25.

Removal of the case from the List – Preliminary objection – Examination of jurisdiction “In declining Rwanda’s request to remove the case from the List, the Court simply reserved the right fully to examine further the issue of its jurisdiction at a later stage. It is precisely such a further examination which is the object of the present phase of the proceedings”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 20, para. 25.

Establishment of dispute – Jurisdiction of the Court – Non-settlement of dispute by negotiation “The Court also notes that Article 14, paragraph 1, of the Montreal Convention gives the Court jurisdiction in respect of any dispute between contracting States concerning the interpretation or application of the Convention, on condition that: it has not been possible to settle the dispute by negotiation; that, following the failure of negotiations, the dispute has, at the request of one such State, been submitted to arbitration; and that, if the parties have been unable to agree on the organization of the arbitration, a period of six months has elapsed from the date of the request for arbitration. In order to determine whether it has jurisdiction under this provision, the Court will therefore first have to ascertain whether there is a dispute between the Parties relating to the interpretation or application of the Montreal Convention which could not have been settled by negotiation”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 49, para. 117.

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The Peaceful Settlement of International Disputes Jurisdiction of the Court – Extent of consent

“As it recalled in its Order of 10 July 2002, the Court has jurisdiction in respect of States only to the extent that they have consented thereto (Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 241, para. 57)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 32, para. 65.

Acceptance of jurisdiction – Critical date “In this connection, the Court recalls that it has consistently held that, while its jurisdiction must surely be assessed on the date of the filing of the act instituting proceedings (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 12, para. 26), the Court should not, however, penalize a defect in procedure which the Applicant could easily remedy (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 287, para. 50. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 12, para. 26).

Acceptance of jurisdiction of the Court by a state – Forms and means “The Court recalls its jurisprudence, as well as that of its predecessor, the Permanent Court of International Justice, regarding the forms which the parties’ expression of their consent to its jurisdiction may take. According to that jurisprudence, ‘neither the Statute nor the Rules require that this consent should be expressed



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in any particular form’, and ‘there is nothing to prevent the acceptance of jurisdiction . . . from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement’ (Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, pp. 27–28; see also Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 23)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 18, para. 21. Previous: Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, pp. 27–28. Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 23.

Acceptance of jurisdiction of the Court by a state – Form and means of expression “The attitude of the respondent State must, however, be capable of being regarded as ‘an unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner (Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, p. 27); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 342, para. 34; see also Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 18, para. 21. Previous: Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, p. 27). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 342, para. 34. Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24.

Preliminary objection – Consent the court’s jurisdiction “The fact, as the DRC has pointed out, that Rwanda has ‘fully and properly participated in the different procedures in this case, without having itself represented or

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failing to appear’, and that ‘it has not refused to appear before the Court or make submissions’, cannot be interpreted as consent to the Court’s jurisdiction over the merits, inasmuch as the very purpose of this participation was to challenge that jurisdiction (Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 113–114)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 19, para. 22. Previous: Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 113–114).

Fundamental distinction between question of acceptance of the Court’s jurisdiction and conformity of parties acts with international law “The Court is precluded by its Statute from taking any position on the merits of the claims made by the DRC. However, as the Court has stated on numerous previous occasions, there is a fundamental distinction between the question of the acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law. Whether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 53, para. 127.

Consent and extent of jurisdiction “The Court recalls in this regard that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them (see paragraph 65 above). When that consent is expressed in a compromissory clause in an international agreement, any conditions to which such consent is subject must be regarded as constituting the limits thereon. The Court accordingly considers that the examination of such conditions relates to its jurisdiction and not to the admissibility of the application (see Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, pp. 11–15; Interpretation of the Statute of the Memel Territory, Merits, Judgment, 1932, P.C.I.J., Series A/B, No. 49, pp. 327–328; Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 78–80; South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 344–346; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States



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of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 427–429, paras. 81–83; Border and Trans-border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, pp. 88–90, paras. 42–48; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, paras. 16–19; p. 24, paras. 39–40; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 121–122, paras. 15–19; p. 129, paras. 38–39)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 39, para. 88. Previous: Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, pp. 11–15. Interpretation of the Statute of the Memel Territory, Merits, Judgment, 1932, P.C.I.J., Series A/B, No. 49, pp. 327–328. Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 78–80. South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 344–346. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 427–429, paras. 81–83. Border and Trans-border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, pp. 88–90, paras. 42–48. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 16, paras. 16–19; p. 24, paras. 39–40. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 121–122, paras. 15–19; p. 129, paras. 38–39.

Basis of jurisdiction – Parties to the statute “However fundamental the question of the capacity of States to be parties in cases before the Court may be, it remains a question to be determined by the Court, in accordance with Article 36, paragraph 6, of the Statute, and once a finding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. There is thus, as a matter of law, no possibility that the Court might render ‘its final decision with respect to a party over which it cannot exercise its judicial function’, because the question whether a State is or is not a party subject to the jurisdiction of the Court is one which is reserved for the sole and authoritative decision of the Court”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 101, para. 138.

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The Peaceful Settlement of International Disputes Jurisdiction – Invoking objections during merits phase

“It should however be noted that if a party to proceedings before the Court chooses not to raise an issue of jurisdiction by way of the preliminary objection procedure under Article 79 of the Rules, that party is not necessarily thereby debarred from raising such issue during the proceedings on the merits of the case”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 84, para. 101.

Objection to jurisdiction during merits phase “There are of course circumstances in which the party failing to put forward an objection to jurisdiction might be held to have acquiesced in jurisdiction (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13). However, apart from such circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits.’ (Judgment, I.C.J. Reports 2004, p. 29, para. 24)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 84, para. 101. Previous: Appeal relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13.

Acquiescence to jurisdiction understood – Objection to jurisdiction during merits phase “There are of course circumstances in which the party failing to put forward an objection to jurisdiction might be held to have acquiesced in jurisdiction (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13). However, apart from such circumstances, a party failing to avail itself of the Article 79 procedure may forfeit the right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits.’ (Judgment, I.C.J. Reports 2004, p. 29, para. 24)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 84, para. 101. Previous: Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 52, para. 13.



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Jurisdiction consent of parties “A distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.’ (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36; emphasis in the original)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 85, para. 102. Previous: Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36.

Jurisdiction – Difference between consent of a party and the right of a party “A distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.’ (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36; emphasis in the original)”.

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 85, para. 102. Previous: Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 295, para. 36.

Basis of jurisdiction – Capacity of parties for appearance not satisfied but not the ratione materiae – No jurisdiction upheld “Thus if the Court considers that, in a particular case, the conditions concerning the capacity of the parties to appear before it are not satisfied, while the conditions of its jurisdiction ratione materiae are, it should, even if the question has not been raised by the parties, find that the former conditions are not met, and conclude that, for that reason, it could not have jurisdiction to decide the merits”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 94, para. 122.

Preliminary objection – Jurisdiction – Consent of the parties and scope of acceptance “The Court confirmed, in the case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Jurisdiction and Admissibility, Judgment), that ‘its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them’ (I.C.J. Reports 2006, p. 39, para. 88)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 200, para. 48. Previous: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) ( Jurisdiction and Admissibility, Judgment), I.C.J. Reports 2006, p. 39, para. 88.

Preliminary objection – Jurisdiction – Admissibility “The conditions to which such consent is subject must be regarded as constituting the limits thereon . . . The examination of such conditions relates to its jurisdiction and not to the admissibility of the application.’ (Ibid)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 200, para. 48.



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Preliminary objection – Jurisdiction – Means of expression of consent “This remains true, whether the consent at issue has been expressed through a compromissory clause inserted in an international agreement, as was contended to be the case in Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), or through ‘two separate and successive acts’ (Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, p. 28), as is the case here”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 200, para. 48. Previous: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda, Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, p. 28.

Preliminary objection – Jurisdiction “They have however claimed that, in accordance with the well-established jurisprudence of the Court, ‘the Court is not compelled in every case to exercise [its] jurisdiction’ (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 29); and that the Court has the power to decide to dispose of the case in limine litis. After all, ‘[t]here are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore’ (ibid.). It is emphasized in particular that ‘the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists between the parties’ (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271, para. 57; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 60; emphasis added)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1026, para. 33. Previous: Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 29. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271, para. 57. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 60.

Preliminary objection – exercise of jurisdiction only in case of genuine existence of a dispute “They have however claimed that, in accordance with the well-established jurisprudence of the Court, ‘the Court is not compelled in every case to exercise [its] jurisdiction’ (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 29); and that

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the Court has the power to decide to dispose of the case in limine litis. After all, ‘[t]here are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore’ (ibid.). It is emphasized in particular that ‘the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists between the parties’ (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271, para. 57; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 60; emphasis added)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1026, para. 33. Previous: Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 29. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 271, para. 57. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 60.

Preliminary objection – Jurisdiction – Essential difference between jurisdictions related to the consent of a party and right of a party to appear before the Court under the Statute which is not a matter of consent “On this point, however, it is the view of the Court that a distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1026, para. 35.

Preliminary objection – Jurisdiction – Essential difference between jurisdictions related to the consent of a party and right of a party to appear before the Court under the Statute which is not a matter of consent – Task of the Court “On this point, however, it is the view of the Court that a distinction has to be made between a question of jurisdiction that relates to the consent of a party and



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the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1026, para. 35.

Preliminary objection – Function of a decision of the Court on its jurisdiction “The function of a decision of the Court on its jurisdiction in a particular case is solely to determine whether or not the Court may entertain that case on the merits, and not to engage in a clarification of a controverted issue of a general nature. A decision of the Court should have, in the words of the Judgment in the Northern Cameroons case, ‘some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations’ (I.C.J. Reports 1963, p. 34; emphasis added); and that will be the proper consequence of the Court’s decision on its jurisdiction in the present case”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1027, para. 37. Previous: Northern Cameroons, I.C.J. Reports 1963, p. 34.

Preliminary objection – Jurisdiction – Form of expression “The jurisdiction of the Court is based on the consent of States, under the conditions expressed therein. However, neither the Statute of the Court nor its Rules require that the consent of the parties which thus confers jurisdiction on the Court be expressed in any particular form (Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, p. 27)”.

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Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 203, para. 60. Previous: Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947–1948, p. 27.

Preliminary objection – Expression of consent for the Court’s jurisdiction “The Statute of the Court does explicitly mention the different ways by which States may express their consent to the Court’s jurisdiction. Thus, in accordance with Article 36, paragraph 1, of the Statute, such consent may result from an explicit agreement of the parties, that agreement being able to be manifested in a variety of ways. Further, States may recognize the jurisdiction of the Court by making declarations to this effect under Article 36, paragraph 2, of the Statute”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 203, para. 60.

Preliminary objection – Jurisdiction – ratione temporis “In the present case, where it is so founded, the Court considers it immaterial whether these later elements would ‘go beyond the declared subject of (the) Application’ (as France argued, an argument against which Djibouti referred to the Court’s case law regarding liberty to amend submissions). So far as the arrest warrants issued against senior Djiboutian officials are concerned, in the Court’s view, what is decisive is that the question of its jurisdiction over the claims relating to these arrest warrants is not to be answered by recourse to jurisprudence relating to ‘continuity’ and ‘connexity’, which are criteria relevant for determining limits ratione temporis to its jurisdiction, but by that which France has expressly accepted in its letter of 25 July 2006”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 212, para. 88.

Preliminary objection – Jurisdiction – Act constituting a form of consent by a party of the Court’s jurisdiction “Although the arrest warrants could be perceived as a method of enforcing the summonses, they represent new legal acts in respect of which France cannot be considered as having implicitly accepted the Court’s jurisdiction. Therefore, the



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claims relating to the arrest warrants arise in respect of issues which are outside the scope of the Court’s jurisdiction ratione materiae”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 212, para. 88.

Preliminary objection – Discretion of court to choose the ground to base its decision “By the same token, the Court in the past pointed out that when its jurisdiction is challenged on diverse grounds, it is free to base its decision on one or more grounds of its own choosing, in particular ‘the ground which in its judgment is more direct and conclusive’ (Certain Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957, p. 25; see also Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports 1959, p. 127; Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, pp. 16–17, paras. 39–40, and Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment, I.C.J. Reports 2000, p. 24, para. 26)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1030, para. 45. Previous: Certain Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957, p. 25. Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Judgment, I.C.J. Reports 1959, p. 12. Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978, pp. 16–17, paras. 39–40. Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment, I.C.J. Reports 2000, p. 24, para. 26).

Settlement of disputes – ICJ – Judicial task “whereas ‘the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal’; (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25); whereas the Court may indicate provisional measures without infringing these principles; and whereas the argument put forward on these specific points by the United States accordingly cannot be accepted; . . .”. LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25).

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Examination of terms of acceptance of the Court’s jurisdiction of both parties “In light of the foregoing, the Court will examine not only the terms of France’s acceptance, but also the terms of Djibouti’s Application to which that acceptance responds. Only then can the scope of the claims in respect of which France has accepted the jurisdiction of the Court be properly understood. As Djibouti readily acknowledges, when consent is given post hoc, a State may well give only partial consent, and in so doing narrow the jurisdiction of the Court by comparison with what had been contemplated in the Application”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 206, para. 66.

Dispute settlement – International court of justice – Judicial task “In its Order of 13 July 2006, the Court took the view that the ‘construction [of the mills] at the current site cannot be deemed to create a fait accompli’ (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 78). Thus, in pronouncing on the merits in the dispute between the Parties, the Court is the ultimate guarantor of their compliance with the 1975 Statute”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 70, para. 156. Previous: Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 133, para. 78).

Judicial settlement – ICJ – Judicial task “As for the independence of such experts, the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that, despite the volume and complexity of the factual information submitted to it, it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate. Thus, in keeping with its practice, the Court will make its own determination of the facts, on the basis of the evidence presented to it,



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and then it will apply the relevant rules of international law to those facts which it has found to have existed”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 72, para. 168.

Judicial settlement of dispute – Proceedings devoted to reparation – res judicata “It goes without saying, however, as the Court has had the opportunity to state in the past, ‘that in the phase of the proceedings devoted to reparation, neither Party may call in question such findings in the present Judgment as have become res judicata’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 143, para. 284)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 257, para. 260. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 143, para. 284.

Evidentiary value of independent commission “The Court has already expressed its view with regard to the evidentiary value of the Porter Commission materials in general (see paragraph 61 above) and considers that both the Porter Commission Report, as well as the United Nations Panel reports, to the extent that they have later proved to be probative, furnish sufficient and convincing evidence for it to determine whether or not Uganda engaged in acts of looting, plundering and illegal exploitation of the DRC’s natural resources”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 249, para. 237.

Judicial settlement of dispute – Judicial task – Inherent limitations “However, the task of the Court must be to respond, on the basis of international law, to the particular legal dispute brought before it. As it interprets and applies the law, it will be mindful of context, but its task cannot go beyond that”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 190, para. 26.

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The Peaceful Settlement of International Disputes Provisional Measures

Judicial Settlement of Disputes – The International Court of Justice – Incidental Proceedings – Interim Protection – Connection between general jurisdiction of the case and interim protection measures “Where the Court has jurisdiction to decide a case, it also has jurisdiction to deal with submissions requesting it to determine that an order indicating measures which seeks to preserve the rights of the Parties to this dispute has not been complied with”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 484, para. 45.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection: Effects of the decision “The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and, in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 502, para. 102.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection: Effects of the decision “A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of ‘the principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties



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to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute’ (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J., Series A/B, No. 79, p. 199)”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 503, para. 103. Previous: Electricity Company of Sofia and Bulgaria. Order of 5 December 1939, P.C.I.J., Series A/B, No. 79, p. 199

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Effects of the decision Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented (see Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18, and p. 11, para. 32, point 1 A; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993. I.C.J. Reports 1993, p. 23, para. 48, and p. 24, para. 52 B; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349, para. 57, and p. 350, para. 61 (3); Land and Maritime Boundary betll’een Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), pp. 22–23, para. 41, and p. 24, para. 49 (1)”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 503, para. 103. Previous: Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 106. Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142. Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18, and p. 11, para. 32, point 1 A. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993. I.C.J. Reports 1993, p. 23, para. 48, and p. 24, para. 52 B. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I. C.J. Reports 1993, p. 349, para. 57, and p. 350, para. 61 (3). Land and Maritime Boundary betll’een Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), pp. 22–23, para. 41, and p. 24, para. 49 (1).

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The Peaceful Settlement of International Disputes Judicial Settlement – The International Court of Justice – Incidental Proceedings – Interim Protection – Legal Effects of the decision

“Neither the Permanent Court of International Justice, nor the present Court to date, has been called upon to determine the legal effects of orders made under Article 41 of the Statute. As Germany’s third submission refers expressly to an international legal obligation ‘to comply with the Order on Provisional Measures issued by the Court on 3 March 1999’, and as the United States disputes the existence of such an obligation, the Court is now called upon to rule expressly on this question”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, para. 98.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim Protection – Power to indicate provisional measures – limitations to exercise – lack of jurisdiction on the merits prima facie “Whereas, when dealing with a request for the indication of provisional measures, there is no need for the Court, before deciding whether or not to indicate such measures, to satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case; but whereas it may only indicate those measures if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded; . . . Whereas Belgium is seeking to found the jurisdiction of the Court on Article 30 of the Convention against Torture and on the basis of the declarations made by the two States pursuant to Article 36, paragraph 2, of the Statute; and whereas the Court must now endeavour to establish whether the compromissory clause under the convention, or the declarations relied upon do indeed confer upon it prima facie jurisdiction to rule on the merits, enabling it to indicate provisional measures if it considers that the circumstances so require . . .”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 147, para. 40.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim Protection – Power to indicate provisional measures – limitations to exercise – lack of jurisdiction on the merits prima facie “Whereas Article 30 of the Convention against Torture makes the Court’s jurisdiction conditional on the existence of a ‘dispute between two or more States Parties concerning the interpretation or application of this Convention’; whereas,



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at this stage of the proceedings, the Court must begin by establishing whether, prima facie, such a dispute existed on the date the Application was filed, since, as a general rule, it is on that date, according to the Court’s jurisprudence, that its jurisdiction must be considered (see South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 344; Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 130, para. 43)”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 148, para. 46. Previous: South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 344. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 130, para. 43.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Effects of the decision “The question arises as to the meaning to be attributed to the words ‘the decision of the International Court of Justice’ in paragraph I of this Article. This wording could be understood as referring not merely to the Court’s judgments but to any decision rendered by it, thus including orders indicating provisional measures. It could also be interpreted to mean only judgments rendered by the Court as provided in paragraph 2 of Article 94. In this regard, the fact that in Articles 56 to 60 of the Court’s Statute both the word ‘decision’ and the word ‘judgment’ are used does little to clarify the matter. Under the first interpretation of paragraph I of Article 94, the text of the paragraph would confirm the binding nature of provisional measures; whereas the second interpretation would in no way preclude their being accorded binding force under Article 41 of the Statute. The Court accordingly concludes that Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 108.

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The Peaceful Settlement of International Disputes Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Sources of interpretation – Effects of the decision

“In short, it is clear that none of the sources of interpretation referred to in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Sources of interpretation – Effects of the decision – Obligation to observe by Parties “The Court will now consider the Order of 3 March 1999. This Order was not a mere exhortation. It had been adopted pursuant to Article 41 of the Statute. This Order was consequently binding character and created a legal obligation for the United States”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 110.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Sources of interpretation: Effects of the decision – Obligation to observe by Parties – Procedural steps “The Court observes, nevertheless, that the mere transmission of its Order to the Governor of Arizona without any comment, particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of the United States that orders of the International Court of Justice on provisional measures are non-binding, was certainly less than could have been done even in the short time available”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 507, para. 112.



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Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Sources of interpretation – Effects of the decision – Obligation to ensure result by parties “The Order did not require the United States to exercise powers it did not have: but it did impose the obligation to ‘take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings . . .’. The Court finds that the United States did not discharge this obligation”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 508, para. 115.

Judicial Settlement – the International Court of Justice – Incidental Proceedings – Interim protection – Effects of the decision “The preparatory work of Article 41 shows that the preference given in the French text to ‘indiquer’ over ‘ordonner’ was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders”. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 505, para. 107.

Interim Protection Measures Interim protection – Power to indicate provisional measures – basis – Special clause of article 41 of the Statute – suo moto “Whereas, independently of the requests for the indication of provisional measures submitted by the parties to preserve specific rights, the Court possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require (cf. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 41; Frontier Dispute (Burkina Faso v. Republic of Mali), Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18); whereas however the Court does not in the circumstances of the present case see any need for measures of this kind to be indicated”.

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Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 111, para. 39. Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 41. Frontier Dispute (Burkina Faso v. Republic of Mali), Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18.

Interim protection – Request – Nature Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties pending its decision; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 388–389, para. 118); whereas a link must therefore be established between the provisional measures requested and the rights which are the subject of the proceedings before the Court as to the merits of the case”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 56. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 388–389, para. 118.

Interim protection – Request – Connection with original Application Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties pending its decision; whereas it follows that the Court must be concerned



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to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 388–389, para. 118); whereas a link must therefore be established between the provisional measures requested and the rights which are the subject of the proceedings before the Court as to the merits of the case”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 56. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 388–389, para. 118.

Interim protection – Request – Nature “Whereas the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 56.

Interim protection – Request – Object “Whereas however the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be caused to the rights in dispute before the Court has given its final decision (see, for example, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107,

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para. 22; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007 (I), p. 11, para. 32; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 392–393, para. 129); and whereas the Court must therefore consider whether such urgency exists in these proceedings”. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 56. Previous: Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23. Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107, para. 22. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007 (I), p. 11, para. 32. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008, pp. 392–393, para. 129.

Judicial settlement – the International Court of Justice – Judicial Function – Exercise “The Court cannot uphold the line of argument thus formulated. Indeed, it is for the Court to decide, on the basis of Article 14, paragraph 1, of the Montreal Convention, on the lawfulness of the actions criticized by Libya, in so far as those actions would be contrary to the provisions of the Montreal Convention”. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libayan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 23, para. 36.

Provisional measures – prima facie jurisdiction “Whereas in dealing with a request for provisional measures the Court need not finally satisfy itself that it has jurisdiction on the merits of the case but will not indicate such measures unless there is, prima facie, a basis on which the jurisdiction of the Court might be established (see, for example, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 241, para. 58; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, pp. 128–129, para. 57); whereas that is so whether the request for the indication of provisional



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measures is made by the applicant or by the respondent in the proceedings on the merits.” Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 10, para. 24. Previous: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 241, para. 58. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, pp. 128–129, para. 57.

Provisional measures – prima facie jurisdiction – Nature and extent of rights “whereas in establishing the Court’s prima facie jurisdiction to deal with the merits of the case, the question of the nature and extent of the rights for which protection is being sought in the request for the indication of provisional measures has no bearing; whereas that latter question will only be addressed once the Court’s prima facie jurisdiction over the merits of the case has been established”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 10, para. 25.

Provisional measures – Rights of respondent “Whereas Article 41 of the Court’s Statute authorizes it ‘to indicate . . . any provisional measures which ought to be taken to preserve the respective rights of either party’; and whereas the rights of the respondent are not dependent solely upon the way in which the applicant formulates its application”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 10, para. 28.

Provisional measures – Object “Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object to preserve the respective rights of each party to the proceedings ‘[p]ending the final decision’, providing that such measures are justified to prevent irreparable prejudice to the rights which are the subject of the dispute”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 11, para. 31.

1102

The Peaceful Settlement of International Disputes Provisional measures – Object – Irreparable prejudice

“Whereas that power of the Court to indicate provisional measures can be exercised only if there is an urgent necessity to prevent irreparable prejudice to such rights, before the Court has given its final decision (see, for example, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107, para. 22)”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 11, para. 31.

Provisional measures – Link between irreparable prejudice and existence of urgent necessity “Whereas the Court thus has to consider whether the existence of such urgent necessity to prevent irreparable prejudice to the rights which are the subject of the present case has been shown in the current proceedings”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 11, para. 33.

Provisional measures – Nature of measures indicated – Practice “Whereas the Court has on several occasions issued provisional measures directing the parties not to take any actions which could aggravate or extend the dispute or render more difficult its settlement (see, for example, United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 21, para. 47 (B); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 24, para. 52 (B); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 24, para. 49 (1); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 3 July 2000, I.C.J. Reports 2000, p. 129, para. 47 (1); whereas in those cases provisional measures other than measures directing the parties not to take actions to aggravate or extend the dispute or to render more difficult its settlement were also indicated”.



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Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 16, para. 49. Previous: United States Diplomatic and Consular Staff in Tehran, Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 21, para. 47 (B). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 24, para. 52 (B). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 24, para. 49 (1). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 3 July 2000, I.C.J. Reports 2000, p. 129, para. 47(1)).

Provisional measures – Practical examples as criteria constituting non-indication of provisional measures “Whereas the Court has not found that at present there is an imminent risk of irreparable prejudice to the rights of Uruguay in dispute before it, caused by the blockades of the bridges and roads linking the two States (see paragraphs 41–43 above); whereas the Court therefore considers that the blockades themselves do not justify the indication of the second provisional measure requested by Uruguay, in the absence of the conditions for the Court to indicate the first provisional measure . . .”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, pp. 16, para. 50.

Term of expiry of provisional measures “Provisional measures under Article 41 of the Statute are indicated ‘pending [the] final decision’ in the case, and the measures indicated in 1993 will thus lapse on the delivery of the present Judgment (cf. Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objections, Judgment, I.C.J. Reports 1952, p. 114; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442, para. 112)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 236, para. 468. Previous: Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objections, Judgment, I.C.J. Reports 1952, p. 114. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442, para. 112.

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The Peaceful Settlement of International Disputes Binding effect – Provisional measures

“The Court observes that its ‘orders on provisional measures under Article 41 [of the Statute] have binding effect’ (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109). Although the Court only had occasion to make such a finding in a judgment subsequent to the Orders that it made in the present dispute, this does not affect the binding nature of those Orders, since in the Judgment referred to the Court did no more than give the provisions of the Statute the meaning and scope that they had possessed from the outset”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 230, para. 452. Previous: LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109.

Provisional measures – prima facie jurisdiciton “The Court observes that, given the urgency which, ex hypothesi, characterizes the consideration of requests for the indication of provisional measures, it does not normally at that stage take a definitive decision on its jurisdiction. It does so only if it is apparent from the outset that there is no basis on which jurisdiction could lie, and that it therefore cannot entertain the case”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 20, para. 251.

Preliminary objections – Provisional measures – prima facie jurisdiction “Whereas, on a request for the indication of provisional measures, the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded; . . .”. Avena and other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 87, para. 38.



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Proceedings – Use of reasoning in one area (e.g. land boundaries) not transposable to other area (maritime boundaries) “Nor does the Court accept Cameroon’s contention that the reasoning in the Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 554) and the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J. Reports 1994, p. 6) in regard to land boundaries is necessarily transposable to those concerning maritime boundaries”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 421, para. 238. Previous: Frontier Dispute (Burkina Faso/ Republic of Mali) (I.CJ. Reports 1986, p. 554). Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J. Reports 1994, p. 6.

Legal rights of third parties – Importance of their mere presence “In view of the foregoing, the Court concludes that it cannot rule on Cameroon’s claims in so far as they might affect rights of Equatorial Guinea and Sao Tome and Principe. Nonetheless, the mere presence of those two States, whose rights might be affected by the decision of the Court, does not in itself preclude the Court from having jurisdiction over a maritime delimitation between the Parties to the case before it, namely Cameroon and Nigeria, although it must remain mindful, as always in situations of this kind, of the limitations on its jurisdiction that such presence imposes”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 421, para. 238.

Article 79 paragraph 7 – Exclusive preliminary character “Provisions on preliminary objections adopted by the Court in its Rules in 1972 and retained in 1978, which provide that the Court is to give a decision ‘by which it shall either uphold the objection, reject it, or declare that the objection does not possess in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings.’ (Rules of Court, Art. 79, para. 7)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 420, para. 237.

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The Peaceful Settlement of International Disputes

Provisional measures – General provisions – No prejudicial impact of decision on the request for provisional measures on the request for interpretation “The Court stated that the decision rendered on the request for the indication of provisional measures ‘in no way prejudges any question that the Court may have to deal with relating to the Request for interpretation’ (ibid., p. 331, para. 79)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 9, para. 15.

Provisional measures – Object and purpose “Whereas the Court, when considering a request for the indication of provisional measures, ‘must be concerned to preserve . . . the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent’ (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria). Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (1), p. 22, para. 35), without being obliged at this stage of the proceedings to rule on those rights; whereas the issues brought before the Court in this case ‘do not concern the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes’; . . .”. Avena and other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 89, para. 48. Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria). Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (1), p. 22, para. 35.

Provisional measures – Object and purpose “Whereas, moreover, ‘provisional measures under Article 41 of the Statute are indicated ‘pending the final decision’ of the Court on the merits of the case, and are therefore only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given’ (Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23)”. Avena and other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 89, para. 48. Previous: Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23). 



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Jurisidiction – Provisional measures “There is no reason for the Court to seek any further basis of jurisdiction than Article 60 of the Statute to deal with this alleged breach of its Order indicating provisional measures issued in the same proceedings. The Court’s competence under Article 60 necessarily entails its incidental jurisdiction to make findings about alleged breaches of the Order indicating provisional measures. That is still so even when the Court decides, upon examination of the Request for interpretation, as it has done in the present case, not to exercise its jurisdiction to proceed under Article 60”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 19, para. 51.

Submission of request for indication of provisional measures in good time “Whereas ‘the sound administration of justice requires that a request for the indication of provisional measures founded on Article 73 of the Rules of Court be submitted in good time’ (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 14, para. 19)”. Avena and other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 90, para. 54. Previous: LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 14, para. 19).

Provisional measures – Binding effect “The Court observes that its ‘orders on provisional measures under Article 41 [of the Statute] have binding effect’ (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109). The Court recalls that the purpose of provisional measures is to protect the rights of either party, pending the determination of the merits of the case”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 258, para. 263. Previous: LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109.

1108

The Peaceful Settlement of International Disputes Counter-Claim Counter-claim – Connection with the subject matter of the claim

“A fortiori, the same applies to the case of counter-claims, having regard to the provisions of Article 80 of the Rules of Court, and in particular taking into account the fact that it is on the basis of the counter-claim as originally submitted that the Court determines whether it is ‘directly connected with the subject-matter of the claim’, and as such admissible under that text. If it is the case, as contended by Iran, that the Court has before it something that ‘constitutes . . . a new claim, [so that] the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim’ (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, I. C.J. Reports 1992, p. 267, para. 70), then the Court will be bound to dismiss such new claim”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 213, para. 117. Previous: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, I. C.J. Reports 1992, p. 267, para. 70.

Counter-claim – Admissibility – Specific example – International trade law “The Court has noted in its Order of 10 March 1998 in the present case that the counter-claim alleged ‘attacks on shipping, the laying of mines, and other military actions said to be ‘dangerous and detrimental to maritime commerce’ (I.C.J. Reports 1998, p. 204, para. 36). The Court concluded that the counter-claim was admissible in so far as ‘the facts alleged may have prejudiced the freedoms guaranteed by Article X, paragraph I’ (ibid)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 214, para. 118.

Procedure – Objections to admissibility “Whereas under Article 80, paragraph 1, of the Rules of Court two requirements must be met for the Court to be able to entertain a counter-claim at the same time as the principal claim; whereas in earlier pronouncements the Court has characterized these requirements as requirements on the ‘admissibility of a counter-claim as such’ (Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203,



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para. 33; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35); whereas ‘admissibility’ in this context must be understood broadly to encompass both the jurisdictional requirement and the direct-connection requirement”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 315, para. 14. Previous: Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), CounterClaims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35.

Peaceful settlement of international disputes – Counter-claims “Whereas Germany does not dispute that the Italian claim is not presented as a defence on the merits, but as a ‘counter-claim’ within the meaning of Article 80 of the Rules of Court, that is to say, a counter-claim constituting ‘an autonomous legal act the object of which is to submit a new claim to the Court’ and, at the same time, ‘linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to it’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counterclaims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256, para. 27); nor is it disputed that the claim has been ‘made in the Counter-Memorial and [appears] as part of the submissions contained therein’, in accordance with Article 80, paragraph 2, of the Rules of Court”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 315, para. 13. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256, para. 27.

Counter-claim – Admissibility “This is clear from the terms of the Order, by which the Court found that the counter-claim was admissible ‘as such’; and in paragraph 41 of the Order the Court further stated that: ‘a decision given on the admissibility of a counter-claim taking account of the requirements set out in Article 80 of the Rules in no way prejudges any question which the Court will be called upon to hear during the remainder

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The Peaceful Settlement of International Disputes

of the proceedings’ (ibid., p. 205, para. 41). The Court will therefore proceed to address the objections now presented by Iran to its jurisdiction to entertain the counter-claim and to the admissibility thereof ”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 210, para. 105.

Counter-claims “Whereas Germany does not dispute that the Italian claim is not presented as a defence on the merits, but as a ‘counter-claim’ within the meaning of Article 80 of the Rules of Court, that is to say, a counter-claim constituting ‘an autonomous legal act the object of which is to submit a new claim to the Court’ and, at the same time, ‘linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to it’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counterclaims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256, para. 27); nor is it disputed that the claim has been ‘made in the Counter-Memorial and [appears] as part of the submissions contained therein’, in accordance with Article 80, paragraph 2, of the Rules of Court”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 315, para. 13. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256, para. 27.

Admissibility of counter-claim – Jurisdictional requirement and direct-connection requirement “Whereas under Article 80, paragraph 1, of the Rules of Court two requirements must be met for the Court to be able to entertain a counter-claim at the same time as the principal claim; whereas in earlier pronouncements the Court has characterized these requirements as requirements on the ‘admissibility of a counter-claim as such’ (Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35); whereas ‘admissibility’ in this context must be understood broadly to encompass both the jurisdictional requirement and the direct-connection requirement.



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Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 315, para. 14. Previous: Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), CounterClaims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35.

Counter-claim “Whereas the Respondent cannot use a counter-claim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties; and whereas the Respondent cannot use that means either to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant’s rights and of compromising the proper administration of justice; and whereas it is for that reason that paragraph 1 of Article 80 of the Rules of Court requires that the counter-claim ‘comes within the jurisdiction of the Court’ and ‘that it is directly connected with the subject-matter of the claim of the other party’.’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, pp. 257–258, para. 31)”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 316, para. 15. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, pp. 257–258, para. 31).

Counter-claim – Connection test of Article 80 As the jurisprudence of the Court reflects, counter-claims do not have to rely on identical instruments to meet the ‘connection’ test of Article 80 (see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 318–319). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 275, para. 326. Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 318–319.

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The Peaceful Settlement of International Disputes Procedure – Delay in bringing a claim – Admissibility of application is the task of the court

“The Court further observes that, in a situation where there is a delay on the part of a State in bringing a claim, it is ‘for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible’ (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 254, para. 32)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 267, para. 295. Previous: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 254, para. 32.

Admission of counter-claims “By an Order of 29 November 2001 the Court found, with regard to the first and second counter-claims, that the Parties’ respective claims in both cases related to facts of the same nature and formed part of the same factual complex, and that the Parties were moreover pursuing the same legal aims. The Court accordingly concluded that these two counter-claims were admissible as such (I.C.J. Reports 2001, pp. 678–682, paras. 38–41, 45 and 51)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 259, para. 267.

Admissibility of the counter-claim “In that case, the Court concluded that Iran was entitled to challenge the admissibility of the United States counter-claim in general, even though the counterclaim had previously been found admissible under Article 80 of the Rules (Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 210, para. 105). Discussing its prior Order, the Court declared: ‘When in that Order the Court ruled on the ‘admissibility’ of the counter-claim, the task of the Court at that stage was only to verify whether or not the requirements laid down by Article 80 of the Rules of Court were satisfied, namely, that there was a direct connection of the counter-claim with the subject-matter of the [principal] claims . . .’ (Ibid.)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 261, para. 271.



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Decision on the admission of counter-claims no way prejudges Court’s dealing with the proceedings “After finding the first and second counter-claim admissible under the Article 80 connection test, the Court emphasized in its Order of 29 November 2001 that ‘a decision given on the admissibility of a counter-claim taking account of the requirements of Article 80 of the Rules of Court in no way prejudges any question with which the Court would have to deal during the remainder of the proceedings’ (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 681, para. 46)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 261, para. 272. Previous: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), CounterClaims, Order of 29 November 2001, I.C.J. Reports 2001, p. 681, para. 46.

Admissibility Preliminary objection – Admissibility “In accordance with its established jurisprudence, the Court will examine the issue of the admissibility of the DRC’s Application only should it find that it has jurisdiction to entertain that Application”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 18, para. 17.

Preliminary objection – No jurisdiction no requirement to rule on the admissibility “The Court concludes from all of the foregoing considerations that it cannot accept any of the bases of jurisdiction put forward by the DRC in the present case. Since it has no jurisdiction to entertain the Application, the Court is not required to rule on its admissibility”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 52, para. 126.

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Article 80(3) abbreviated procedures – Inherent limitation of the court on a party’s objection to jurisdiction and admissibility “Many of Iran’s objections to jurisdiction and admissibility involve contested matters of fact which the Court cannot effectively address and decide at this stage, particularly not in the context of the abbreviated procedures of Article 80 (3). (Cited in I.C.J. Reports 1998, p. 200, para. 22)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 209, para. 104.

Procedure – Objections to admissibility “Whereas under Article 80, paragraph 1, of the Rules of Court two requirements must be met for the Court to be able to entertain a counter-claim at the same time as the principal claim; whereas in earlier pronouncements the Court has characterized these requirements as requirements on the ‘admissibility of a counter-claim as such’ (Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35); whereas ‘admissibility’ in this context must be understood broadly to encompass both the jurisdictional requirement and the direct-connection requirement”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 315, para. 14. Previous: Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), CounterClaims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678, para. 35.

Jurisdiction Critical date Jurisdiction – Critical date “Whereas in its Judgment of 10 February 2005 in the case concerning Certain Property (Liechtenstein v. Germany), in relation to the temporal limitation contained in the same Article 27 (a) of the European Convention, the Court stated



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that ‘the critical issue is not the date when the dispute arose, but the date of the facts or situations in relation to which the dispute arose’ (Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 25, para. 48)”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 317, para. 18. Previous: Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 25, para. 48.

Dispute – Critical date “Whereas in its Judgment of 10 February 2005 in the case concerning Certain Property (Liechtenstein v. Germany), in relation to the temporal limitation contained in the same Article 27 (a) of the European Convention, the Court stated that ‘the critical issue is not the date when the dispute arose, but the date of the facts or situations in relation to which the dispute arose’ (Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 25, para. 48)”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 317, para. 18. Previous: Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 25, para. 48).

Dispute – Critical date “The Court recalls that, in the context of a dispute related to sovereignty over land such as the present one, the date upon which the dispute crystallized is of significance. Its significance lies in distinguishing between those acts which should be taken into consideration for the purpose of establishing or ascertaining sovereignty and those acts occurring after such date, ‘which are in general meaningless for that purpose, having been carried out by a State which, already having claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing those claims’ (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, pp. 697–698, para. 117)”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 27, para. 32. Previous: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, pp. 697–698, para. 117.

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The Peaceful Settlement of International Disputes Dispute – Critical date – Specific proof

“In the view of the Court, it was on 14 February 1980, the time of Singapore’s protest in response to Malaysia’s publication of the 1979 map, that the dispute as to sovereignty over Pedra Branca/Pulau Batu Puteh crystallized”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 28, para. 34.

Evidence Evidence – Material proof – Connection “Nigeria perceived the situation as comparable to that in the Minquiers and Ecrehos case, in which both parties, contended that they retained an ancient title (I.C.J. Reports 1953, p. 53) but the Court considered that ‘[w]hat is of decisive importance . . . is . . . the evidence which relates directly to the possession of the Ecrehos and Minquiers groups’ (ibid., p. 57)”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 413, para. 218. Previous: Minquiers and Ecrehos, I.C.J Reports 1953, p. 53.

Evidence – burden of proof “A preliminary issue concerns the burden of proof. As the Court has said on a number of occasions, the party asserting a fact as a basis of its claim must establish it (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, Reports 2008, p. 31, para. 45; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), 128, para. 204, citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101)”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68. Previous: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, Reports 2008, p. 31, para. 45.



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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), 128, para. 204. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101.

Provisional measures – Evidence – Burden of proof “However, it is ‘the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). Thus in the present case it is for Cameroon to show that Nigeria acted in violation of the provisional measures indicated in the Order of 15 March 1996”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 453, para. 321. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101).

Evidence – Burden of proof “However, it is ‘the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101). Thus in the present case it is for Cameroon to show that Nigeria acted in violation of the provisional measures indicated in the Order of 15 March 1996”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 453, para. 321. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101).

Evidence – Burden of proof “Ukraine placed particular emphasis on the Court’s dictum in the case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) that ‘[t]he establishment of a permanent

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maritime boundary is a matter of grave importance and agreement is not easily to be presumed’ (Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253). That dictum, however, is not directly relevant since in that case no written agreement existed and therefore any implicit agreement had to be established as a matter of fact, with the burden of proof lying with the State claiming such an agreement to exist. In the present case, by contrast, the Court has before it the 1949 Agreement and the subsequent agreements. Rather than having to make findings of fact, with one or other Party bearing the burden of proof as regards claimed facts, the Court’s task is to interpret those agreements. In carrying out that task, the Court must first focus its attention on the terms of those documents including the associated sketch-maps”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68. Previous: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 735, para. 253.

Evidence – Burden of proof “To begin with, the Court considers that, in accordance with the well-established principle of onus probandi incumbit actori, it is the duty of the party which asserts certain facts to establish the existence of such facts. This principle which has been consistently upheld by the Court (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 31, para. 45; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, Reports 2007 (I), p. 128, para. 204; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, 437, para. 101) applies to the assertions of fact both by the Applicant and the Respondent”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 71, para. 162. Previous: Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 31, para. 45. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, Reports 2007 (I), p. 128, para. 204. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, 437, para. 101).



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Evidence – Burden of proof – Duties of applicant and respondent “It is of course to be expected that the Applicant should, in the first instance, submit the relevant evidence to substantiate its claims. This does not, however, mean that the Respondent should not co-operate in the provision of such evidence as may be in its possession that could assist the Court in resolving the dispute submitted to it”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 71, para. 163.

Burden of proof – Precautionary approach “Regarding the arguments put forward by Argentina on the reversal of the burden of proof and on the existence, vis-à-vis each Party, of an equal onus to prove under the 1975 Statute, the Court considers that while a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute, it does not follow that it operates as a reversal of the burden of proof. The Court is also of the view that there is nothing in the 1975 Statute itself to indicate that it places the burden of proof equally on both Parties”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 71, para. 164.

Experts, witnesses “The Court has given most careful attention to the material submitted to it by the Parties, as will be shown in its consideration of the evidence below with respect to alleged violations of substantive obligations. Regarding those experts who appeared before it as counsel at the hearings, the Court would have found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of the Rules of Court, instead of being included as counsel in their respective delegations. The Court indeed considers that those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 72, para. 167.

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The Peaceful Settlement of International Disputes Judicial settlement – ICJ – Evidence – Probative value – Judicial task

“As for the independence of such experts, the Court does not find it necessary in order to adjudicate the present case to enter into a general discussion on the relative merits, reliability and authority of the documents and studies prepared by the experts and consultants of the Parties. It needs only to be mindful of the fact that, despite the volume and complexity of the factual information submitted to it, it is the responsibility of the Court, after having given careful consideration to all the evidence placed before it by the Parties, to determine which facts must be considered relevant, to assess their probative value, and to draw conclusions from them as appropriate. Thus, in keeping with its practice, the Court will make its own determination of the facts, on the basis of the evidence presented to it, and then it will apply the relevant rules of international law to those facts which it has found to have existed”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 72, para. 168.

Evidence – Burden of proof ( fact – responsibility to establish the fact) “It is a general principle of law, confirmed by the jurisprudence of this Court, that a party which advances a point of fact in support of its claim must establish that fact (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 75, para. 204, citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101)”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), Judgment, I.C.J. Reports 2008, p. 31, para. 45. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 75, para. 204, citing. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101.

Significance of absence of rival claims “It is appropriate to recall the pronouncement made by the Permanent Court of International Justice in the case concerning the Legal Status of Eastern Greenland, on the significance of the absence of rival claims. In that case it was the Danish contention that ‘Denmark possessed full and entire sovereignty over the whole of Greenland and that Norway had recognized that sovereignty’, whereas the



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Norwegian contention was that all the parts of Greenland ‘which had not been occupied in such a manner as to bring them effectively under the administration of the Danish Government’ were ‘terrae nullius, and that if they ceased to be terrae nullius they must pass under Norwegian sovereignty’ (Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 39)”. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 35, para. 63. Previous: Legal Status of Eastern Greenland, Judgment, 1933, P.C.I.J., Series A/B, No. 53, p. 39.

Evidence – Material proof “These findings of fact necessarily entail an assessment of the evidence. The Court has in this case been presented with a vast amount of materials proffered by the Parties in support of their versions of the facts. The Court has not only the task of deciding which of those materials must be considered relevant, but also the duty to determine which of them have probative value with regard to the alleged facts. The greater part of these evidentiary materials appear in the annexes of the Parties to their written pleadings. The Parties were also authorized by the Court to produce new documents at a later stage. In the event, these contained important items. There has also been reference, in both the written and the oral pleadings, to material not annexed to the written pleadings but which the Court has treated as ‘part of a publication readily available’ under Article 56, paragraph 4, of its Rules of Court. Those, too, have been examined by the Court for purposes of its determination of the relevant facts”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 190, para. 26.

Settlement of dispute – Judicial task “As it has done in the past, the Court will examine the facts relevant to each of the component elements of the claims advanced by the Parties”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 200, para. 59.

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The Peaceful Settlement of International Disputes Assessment method of evidence – Discretion of the Court

“In so doing, it will identify the documents relied on and make its own clear assessment of their weight, reliability and value. In accordance with its prior practice, the Court will explain what items it should eliminate from further consideration (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 50, para. 85; see equally the practice followed in the case concerning United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 200, para. 59. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 50, para. 85. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3.

Evidence – Critical appreciation “The Court will treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source. It will prefer contemporaneous evidence from persons with direct knowledge. It will give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41. para. 64)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41. para. 64.

Assessment method of evidence obtained by examination of persons “The Court will also give weight to evidence that has not, even before this litigation, been challenged by impartial persons for the correctness of what it contains. The Court moreover notes that evidence obtained by examination of persons directly involved, and who were subsequently cross-examined by judges skilled in



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examination and experienced in assessing large amounts of factual information, some of it of a technical nature, merits special attention”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.

Evidentiary value of an independent commission report in light of acceptance by parties to a dispute “The Court thus will give appropriate consideration to the Report of the Porter Commission, which gathered evidence in this manner. The Court further notes that, since its publication, there has been no challenge to the credibility of this Report, which has been accepted by both Parties”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.

Evidentiary value – Conflict of interest of assessment of member of government appearing as evidence “The Court recalls that it has elsewhere observed that a member of the government of a State engaged in litigation before this Court – and especially litigation relating to armed conflict – ‘will probably tend to identify himself with the interests of his country’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 43, para. 70). The same may be said of a senior military officer of such a State, and ‘while in no way impugning the honour or veracity’ of such a person, the Court should ‘treat such evidence with great reserve’ (ibid.)”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 203, para. 65. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 43, para. 70.

Evidentiary value – Press information “The Court has explained in an earlier case that press information may be useful as evidence when it is ‘wholly consistent and concordant as to the main facts and circumstances of the case’ (United States Diplomatic and Consular Staff in

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Tehran, Judgment, I.C.J. Reports 1980, p. 10, para. 13), but that particular caution should be shown in this area”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 204, para. 68. Previous: United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 10, para. 13.

Evidentiary value of high-ranking official political figures or senior military officers “The Court has already noted that statements ‘emanating from high-ranking official political figures, sometimes indeed of the highest rank, are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them’ (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). The Court believes the same to be the case when such statements against interest are made by senior military officers given the objective circumstances in which those statements were taken”. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 206, para. 78. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64.

Article 35 – Access to the Court by a State “The object and purpose of Article 35 of the Statute is to define the conditions of access to the Court. While paragraph 1 of that Article opens it to the States parties to the Statute, paragraph 2 is intended to regulate access to the Court by States which are not parties to the Statute. The conditions of access of such States are, ‘subject to the special provisions contained in treaties in force’, to be determined by the Security Council, with the proviso that in no case shall such conditions place the parties in a position of inequality before the Court. The Court considers that it was natural to reserve the position in relation to any relevant treaty provisions that might then exist; moreover, it would have been inconsistent with the main thrust of the text to make it possible in the future for States to obtain access to the Court simply by the conclusion between themselves of a special treaty, multilateral or bilateral, containing a provision to that effect”.



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Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1050, para. 101.

Determination of a party to the dispute – Use of name in procedures “In the present judgment, the Applicant will be referred to so far as possible as ‘Serbia and Montenegro’, even when reference is made to a procedural step taken before the change of name; in some instances, however, where the term in a historical context might cause confusion, the title in use at the relevant time will be employed”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1023, para. 24.

Determination of a right party to the dispute – Fundamental question “The question whether Serbia and Montenegro was or was not a party to the Statute of the Court at the time of the institution of the present proceedings is a fundamental one (see paragraph 45 below)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1023, para. 26.

Others Judgment – Discovery of incorrect or insufficient facts- Revision procedure – Rigorous application of restriction envisaged under article 61 “This does not however mean that, should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Court’s conclusions may have been based on incorrect or insufficient facts, the decision must remain final, even if it is in apparent contradiction to reality. The Statute provides for only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 92, para. 120.

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The Peaceful Settlement of International Disputes Decision – Binding and final

“The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has at its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment. The Court stressed those limits in 2003 when it found inadmissible the Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 115. Previous: Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17).

Decision – Binding and final – Time-limit for revision of the judgment The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has at its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment. The Court stressed those limits in 2003 when it found inadmissible the Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17)”.



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Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 115. Previous: Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17.

Principle of binding and final nature of the judicial decision The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has at its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment. The Court stressed those limits in 2003 when it found inadmissible the Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 115. Previous: Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17).

Decision – Binding and final – Non-re-openable except by procedure of exceptional nature The fundamental character of that principle appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has at its core the positive statement that

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the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek the revision of the judgment. The Court stressed those limits in 2003 when it found inadmissible the Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 115. Previous: Application made by Serbia and Montenegro for revision of the 1996 Judgment in the Application for Revision case (I.C.J. Reports 2003, p. 12, para. 17).

Decision upon legal rights of third parties – Unless become parties to the proceedings “The jurisdiction of the Court is founded on the consent of the parties. The Court cannot therefore decide upon legal rights of third States not parties to the proceedings. In the present case there are States other than the parties to these proceedings whose rights might be affected, namely Equatorial Guinea and Sao Tome and Principe. Those rights can not be determined by decision of the Court unless Equatorial Guinea and Sao Tome and Principe have become parties to the proceedings”. Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, Merits, I.C.J. Reports 2002, p. 421, para. 238.

Sources of dispute “Whereas the Court will now examine whether it has jurisdiction ratione temporis under the European Convention; whereas in accordance with the Court’s earlier case law, the facts and situations it must take into consideration are those with regard to which the dispute has arisen or, in other words, only those which must be considered as being the source of the dispute, those which are its ‘real cause’ rather than those which are the source of the claimed rights (Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 35)”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 318, para. 23. Previous: Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 35.



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Judgment effect on the non-existent agreement – Continental shelf delimitation and exclusive economic zones “The Court’s judgment will thus substitute for the non-existent agreement between the Parties on the delimitation of the continental shelf and the exclusive economic zones and shall resolve all such matters which have not been settled by the Parties”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 74, para. 29.

Subject of the dispute must be clear by end of the oral proceedings “The liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Article 40 of the Statute and Article 32, paragraph 2, of the [1936] Rules which provide that the Application must indicate the subject of the dispute (Societe commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173)”. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003 p. 213, para. 117. Previous: Societe commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173.

Lack of jurisdiction – Removal of case from the List “Where the Court finds such a manifest lack of jurisdiction, considerations of the sound administration of justice dictate that it remove the case in question from the List (Legality of Use of Force (Yugoslavia v. Spain), Order of 2 June 1999, I.C.J. Reports 1999 (II), pp. 773–774, para. 40; Legality of Use of Force (Yugoslavia v. United States of America), Order of 2 June 1999, I.C.J. Reports 1999 (II), pp. 925–926, para. 34). Where, on the other hand, the Court is unable to conclude that it manifestly lacks jurisdiction, it retains the case on the List and reserves the right subsequently to consider further the question of jurisdiction, making it clear, as it did in its Order of 10 July 2002, that ‘the findings reached by [it] in the present proceedings in no way prejudge the question of [its] jurisdiction . . . to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves’ (Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 249, para. 90; see also Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim

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Protection, Order of 5 July 1951, I.C.J. Reports 1951, p. 114; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 34, para. 21; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 186, para. 40; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, I.C.J. Reports 1990, p. 69, para. 23; Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), pp. 139–140, para. 46)”. Armed Activities on the Territory of the Congo (New Application: 2002), (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports, p. 20, para. 25. Previous: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 249, para. 90. Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Protection, Order of 5 July 1951, I.C.J. Reports 1951, p. 114. Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 34, para. 21; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 186, para. 40. Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2 March 1990, I.C.J. Reports 1990, p. 69, para. 23. Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), pp. 139–140, para. 46.

Obligation through individual action versus implementation through coordination through a joint mechanism “It is the opinion of the Court that compliance with this obligation cannot be expected to come through the individual action of either Party, acting on its own. Its implementation requires co-ordination through the Commission. It reflects the common interest dimension of the 1975 Statute and expresses one of the purposes for the establishment of the joint machinery which is to co-ordinate the actions and measures taken by the Parties for the sustainable management and environmental protection of the river. The Parties have indeed adopted such measures through the promulgation of standards by CARU. These standards are to be found in Sections E3 and E4 of the CARU Digest. One of the purposes of Section E3 is ‘[t]o protect and preserve the water and its ecological balance”. Similarly, it is stated in Section E4 that the section was developed ‘in accordance with . . . Articles 36, 37, 38, and 39”. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 73, para. 173.



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Requirement for a party seeking interpretation of judgment to indicate precise point or points in dispute “The Court notes that Article 98(2) of the Rules of Court stipulates that when a party makes a request for interpretation of a judgment, ‘the precise point or points in dispute as to the meaning or scope of the judgment shall be indicated”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 15, para. 38.

Jurisdiction – ratione temporis “Whereas the Court will now examine whether it has jurisdiction ratione temporis under the European Convention; whereas in accordance with the Court’s earlier case law, the facts and situations it must take into consideration are those with regard to which the dispute has arisen or, in other words, only those which must be considered as being the source of the dispute, those which are its ‘real cause’ rather than those which are the source of the claimed rights (Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 35)”. Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 318, para. 23. Previous: Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 35.

Judgment effect on the non-existent agreement “The Court’s judgment will thus substitute for the non-existent agreement between the Parties on the delimitation of the continental shelf and the exclusive economic zones and shall resolve all such matters which have not been settled by the Parties”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 74, para. 29.

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The Peaceful Settlement of International Disputes Forum Prorogatum Preliminary objection – forum prorogatum

“This expression was used in the original Rules of Court of the International Court of Justice in 1946 and has remained there ever since. Obviously, the jurisdiction of the Court can be founded on forum prorogatum in a variety of ways, by no means all of which fall under Article 38, paragraph 5. The Court would add that, while doubts may previously have existed in this respect, since the revision in 1978, the wording of Article 38, paragraph 2, excludes the possibility of the phrase ‘as far as possible’ also being applied to the statement of ‘the precise nature of the claim’ or of ‘the facts and grounds on which the claim is based’ ”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 205, para. 64.

Preliminary objection – Jurisdiction – forum prorogatum “The Court has also interpreted Article 36, paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum. This modality is applied when a respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court (Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 203, para. 61. Previous: Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24.

Preliminary objection – Jurisdiction – forum prorogatum “For the Court to exercise jurisdiction on the basis of forum prorogatum, the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State (Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 113–114; see also Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America), Judgment, I.C.J. Reports 1954, p. 30)”.



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Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 204, para. 62. Previous: Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 113–114. Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America), Judgment, I.C.J. Reports 1954, p. 30.

Preliminary objection – Jurisdiction – Article 38, paragraph 5 Rules of the Court “The Court observes that this is the first time it falls to the Court to decide on the merits of a dispute brought before it by an application based on Article 38, paragraph 5, of the Rules of Court. This provision was introduced by the Court into its Rules in 1978. The purpose of this amendment was to allow a State which proposes to found the jurisdiction of the Court to entertain a case upon a consent thereto yet to be given or manifested by another State to file an application setting out its claims and inviting the latter to consent to the Court dealing with them, without prejudice to the rules governing the sound administration of justice”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 204, para. 63.

Entry of a case into the General List – forum prorogatum “Article 38, paragraph 5, now provides, firstly, that no entry is made in the General List unless and until the State against which such application is made consents to the Court’s jurisdiction to entertain the case and, secondly, that, except for the transmission of the application to that State, no action is to be taken in the proceedings. The State which is thus asked to consent to the Court’s jurisdiction to settle a dispute is completely free to respond as it sees fit; if it consents to the Court’s jurisdiction, it is for it to specify, if necessary, the aspects of the dispute which it agrees to submit to the judgment of the Court. The deferred and ad hoc nature of the Respondent’s consent, as contemplated by Article 38, paragraph 5, of the Rules of Court, makes the procedure set out there a means of establishing forum prorogatum”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 205, para. 63.

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The Peaceful Settlement of International Disputes Preliminary objection – Jurisdiction – forum prorogatum

“Article 38, paragraph 5, of the Rules of Court must also be read and interpreted in the light of paragraph 2 of that Article, which reads as follows: ‘The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based.’ The expression ‘as far as possible’ used in this provision was inserted in the Rules of Court of the Permanent Court of International Justice in 1936, precisely in order to preserve the possibility for the Court to found its jurisdiction on forum prorogatum (Acts and Documents Concerning the Organization of the Court: Elaboration of the Rules of Court of March 11th, 1936, P.C.I.J., Series D, No. 2, Add. 3, pp. 159–160)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 205, para. 64. Previous: Acts and Documents Concerning the Organization of the Court: Elaboration of the Rules of Court of March 11th, 1936, P.C.I.J., Series D, No. 2, Add. 3, pp. 159–160.

General Procedural aspects – Essential content elements of a filing of a case “Applying it in such a way would in any event have been out of keeping with the reasons which led the phrase to be included in 1936. No applicant may come to the Court without being able to indicate, in its Application, the State against which the claim is brought and the subject of the dispute, as well as the precise nature of that claim and the facts and grounds on which it is based”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 205, para. 64.

Examination of application – Essential elements – Court’s task “So far as the question of identifying the subject-matter of the dispute is concerned, while indeed it is desirable that what the Applicant regards as the subject-matter of the dispute is specified under that heading in the Application, nonetheless, the Court must look at the Application as a whole”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 206, para. 67.



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Format of application – No specific form “Neither Article 40 of the Statute nor Article 38 of the Rules of Court subject the application to particular formal (as opposed to substantive) requirements regarding the manner by which the necessary elements of the application should be presented. Thus, if a section entitled ‘Subject of the dispute’ does not entirely circumscribe the extent of the issues intended to be brought before the Court, the subject-matter of the dispute may nonetheless be discerned from a reading of the whole Application”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 207, para. 69.

Format of application – No specific form – Defining the subject of the dispute “Ruling on this issue in the case concerning Right of Passage over Indian Territory (Portugal v. India), the Court stated that it would not confine itself to the formulation by the Applicant when it was called upon to determine the subject of the dispute. It then defined the subject of the dispute in the following terms: “A passage in the Application headed ‘Subject of the Dispute’ indicates that subject as being the conflict of views which arose between the two States when, in 1954, India opposed the exercise of Portugal’s right of passage. If this were the subject of the dispute referred to the Court, the challenge to the jurisdiction could not be sustained. But it appeared from the Application itself and it was fully confirmed by the subsequent proceedings, the Submissions of the Parties and statements made in the course of the hearings, that the dispute submitted to the Court has a threefold subject . . .’ (Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 33)”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 207, para. 70. Previous: Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 33.

Interpretation – Context “Furthermore, in accordance with its ordinary meaning, the term ‘Application’ used in the letter of acceptance must be read as comprising the entirety of the Application”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 210, para. 83.

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The Peaceful Settlement of International Disputes Meaning of arrest warrant – Method of enforcing the summonses

“Although the arrest warrants could be perceived as a method of enforcing the summonses, they represent new legal acts in respect of which France cannot be considered as having implicitly accepted the Court’s jurisdiction. Therefore, the claims relating to the arrest warrants arise in respect of issues which are outside the scope of the Court’s jurisdiction rationemateriae”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 212, para. 88.

Treaty – Fulfilment of obligations to attain goals of the treaty “The Court observes that, notwithstanding the broad intention to promote mutual respect as described in Article 1 of the Treaty of 1977, the principal objective of the Treaty is the development of co-operation in the economic, monetary, social and cultural fields. Its substantive provisions speak of objectives to be attained, friendship to be fostered and goodwill to be developed. While these provisions refer to the realization of aspirations, they are not bereft of legal content. The respective obligations of the Treaty are obligations of law, articulated as obligations of conduct or, in this case, of co-operation, of a broad and general nature, committing the Parties to work towards the attainment of certain objectives defined as progress in a variety of fields, as well as in matters relating to peace and security. These goals are to be achieved by the employment of certain procedures and institutional arrangements. That France has ratified the Treaty without finding it necessary to submit it for parliamentary approval does not alter the fact that the Treaty creates legal obligations of the kind just described”. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 216, para. 104.

Preliminary objection – Jurisdiction – Pre-1978 Rules – Removal of the case from the General List “Before this revision, the Court treated this type of application in the same way as any other application submitted to it: the Registry would issue the usual notifications and the ‘case’ was entered in the General List of the Court. It could only be removed from the List if the respondent State explicitly rejected the Court’s jurisdiction to entertain it. The Court was therefore obliged to enter in its General List ‘cases’ for which it plainly did not have jurisdiction and in which, therefore, no further action could be taken; it was consequently obliged to issue



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orders so as to remove them from its List (see Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Hungary), Order of 12 July 1954, I.C.J. Reports 1954, p. 99; Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Union of Soviet Socialist Republics), Order of 12 July 1954, I.C.J. Reports 1954, p. 103; Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia), Order of 14 March 1956, I.C.J. Reports 1956, p. 6; Antarctica (United Kingdom v. Argentina), Order of 16 March 1956, I.C.J. Reports 1956, p. 12; Antarctica (United Kingdom v. Chile), Order of 16 March 1956, I.C.J. Reports 1956, p. 15; Aerial Incident of 7 October 1952 (United States of America v. Union of Soviet Socialist Republics), Order of 14 March 1956, I.C.J. Reports 1956, p. 9; Aerial Incident of 4 September 1954 (United States of America v. Union of Soviet Socialist Republics), Order of 9 December 1958, I.C.J. Reports 1958, p. 158; Aerial Incident of 7 November 1954 (United States of America v. Union of Soviet Socialist Republics), Order of 7 October 1959, I.C.J. Reports 1959, p. 276). Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 204, para. 63. Previous: Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Hungary), Order of 12 July 1954, I.C.J. Reports 1954, p. 99. Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Union of Soviet Socialist Republics), Order of 12 July 1954, I.C.J. Reports 1954, p. 103. Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia), Order of 14 March 1956, I.C.J. Reports 1956, p. 6. Antarctica (United Kingdom v. Argentina), Order of 16 March 1956, I.C.J. Reports 1956, p. 12. Antarctica (United Kingdom v. Chile), Order of 16 March 1956, I.C.J. Reports 1956, p. 15. Aerial Incident of 7 October 1952 (United States of America v. Union of Soviet Socialist Republics), Order of 14 March 1956, I.C.J. Reports 1956, p. 9. Aerial Incident of 4 September 1954 (United States of America v. Union of Soviet Socialist Republics), Order of 9 December 1958, I.C.J. Reports 1958, p. 158. Aerial Incident of 7 November 1954 (United States of America v. Union of Soviet Socialist Republics), Order of 7 October 1959, I.C.J. Reports 1959, p. 276.

Preliminary objections – Dismissal limine litis “However, at this initial stage of its judgment, it is necessary for the Court to decide first on a preliminary question raised by the Respondents, namely whether in the light of the assertions by the Applicant quoted above coupled with the contentions of each of the respondent States, the Court should take a decision to dismiss the case in limine litis, without further entering into the examination of the question whether the Court has jurisdiction under the circumstances”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1024, para. 29.

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The Peaceful Settlement of International Disputes Discontinuance of proceedings – Procedure

“Discontinuance of proceedings by the Applicant is provided for in Article 89 of the Rules of Court, which contemplates the situation in which ‘the applicant informs the Court in writing that it is not going on with the proceedings . . .”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1025, para. 30.

Discontinuance of proceedings – Task of the Court “The role of the Court in a discontinuance procedure, whether by agreement between the parties (Article 88 of the Rules of Court) or at the initiative of the Applicant (Article 89) in the absence of any objection by the Respondent, is ‘simply to record it and to remove the case from its list’ (Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 20)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1025, para. 31. Previous: Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 20.

Discontinuance of proceedings – Role of the Court’s own finding “It may be true that the logical consequence of the contention of Serbia and Montenegro in its Observations could be that the case would go no further; but this would be the result of the Court’s own finding and not the placing on record of a withdrawal by Serbia and Montenegro of the dispute from the Court’s purview”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1025, para. 31.

Removal of the cast from the List “The question has been raised whether there is a procedure open to the Court itself, whereby the Court has ex officio the power to put an end to a case whenever it sees that this is necessary from the viewpoint of the proper administration of justice. Although the Rules of Court do not provide for such a procedure, there



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is no doubt that in certain circumstances the Court may of its own motion put an end to proceedings in a case. Prior to the adoption of Article 38, paragraph 5, of the Rules of Court, in a number of cases in which the application disclosed no subsisting title of jurisdiction, but merely an invitation to the State named as respondent to accept jurisdiction for the purposes of the case, the Court removed the cases from the List by order”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1025, para. 32.

Settlement of disputes – General provisions “In the view of the Court, it cannot decline to entertain a case simply because of a suggestion as to the motives of one of the parties or because its judgment may have implications in another case”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1028, para. 39.

Settlement of dispute – Ground for the basis of judgment “The Court notes that in several cases it referred to ‘its freedom to select the ground upon which it will base its judgment’ (Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 207, para. 29; Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 180, para. 37)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1029, para. 45. Previous: Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, I.C.J. Reports 1958, p. 62. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 207, para. 29. Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 180, para. 37.

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“The Court can exercise its judicial function only in respect of those States which have access to it under Article 35 of the Statute. And only those States which have access to the Court can confer jurisdiction upon it”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1030, para. 45.

Article 34 and 35 – Determination of a party’s legal status to appear before the Court “It is the view of the Court that it is incumbent upon it to examine first of all the question whether the Applicant meets the conditions laid down in Articles 34 and 35 of the Statute and whether the Court is thus open to it. Only if the answer to that question is in the affirmative will the Court have to deal with the issues relating to the conditions laid down in Articles 36 and 37 of the Statute of the Court (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, pp. 11 et seq., paras. 14 et seq.)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1030, para. 45. Previous: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, pp. 11 et seq., paras. 14 et seq.

Article 34 and 35 – Determination of a party’s legal status to appear before the Court – State practice in form of voting “While it is clear from the voting figures (see paragraphs 58 and 59 above) that these resolutions reflected a position endorsed by the vast majority of the Members of the United Nations, they cannot be construed as conveying an authoritative determination of the legal status of the Federal Republic of Yugoslavia within, or vis-à-vis, the United Nations. The uncertainty surrounding the question is evidenced, inter alia, by the practice of the General Assembly in budgetary matters during the years following the break-up of the Socialist Federal Republic of Yugoslavia”.



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Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1037, para. 66.

Article 34 and 35 – Determination of a party’s legal status to appear before the Court – Importance of summary of the UN Secretary-General “As originally issued, that Summary contained a paragraph (paragraph 297) on the practice of the Secretariat on the break-up of a State party to a multilateral convention of which the Secretary-General was the depositary. It was there stated, inter alia, that ‘[t]he independence of the new successor State, which then exercises its sovereignty on its territory, is of course without effect as concerns the treaty rights and obligations of the predecessor State as concerns its own (remaining) territory”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1039, para. 70.

Article 34 and 35 – Determination of a party’s legal status to appear before the Court “It must be stated that this qualification of the position of the Federal Republic of Yugoslavia as ‘sui generis’, which the Court employed to describe the situation during this period of 1992 to 2000, is not a prescriptive term from which certain defined legal consequences accrue; it is merely descriptive of the amorphous state of affairs in which the Federal Republic of Yugoslavia found itself during this period. No final and definitive conclusion was drawn by the Court from this descriptive term on the amorphous status of the Federal Republic of Yugoslavia vis-à-vis or within the United Nations during this period”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1040, para. 73.

Jurisdiction – ratione personae “[T]he Court therefore considers that proceedings may validly be instituted by a State against a State which is a party to such a special provision in a treaty in force, but is not party to the Statute, and independently of the conditions laid down by the Security Council in its resolution 9 of 1946 (cf. S.S. ‘Wimbledon’, 1923, P.C.I.J., Series A, No. 1, p. 6); whereas a compromissory clause in a multilateral convention, such as Article IX of the Genocide Convention relied on by BosniaHerzegovina in the present case, could, in the view of the Court, be regarded

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prima facie as a special provision contained in a treaty in force; whereas accordingly if Bosnia-Herzegovina and Yugoslavia are both parties to the Genocide Convention, disputes to which Article IX applies are in any event prima facie within the jurisdiction ratione personae of the Court’ (I.C.J. Reports 1993, p. 14, para. 19; emphasis added)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1047, para. 93. Previous: S.S. “Wimbledon”, 1923, P.C.I.J., Series A, No. 1, p. 6.

Article 34 and 35 – Determination of a party’s legal status to appear as a party before the Court “Bosnia and Herzegovina in its Application in that case maintained that ‘the Federal Republic of Yugoslavia (Serbia and Montenegro)’ was a Member of the United Nations and a party to the Statute and at the same time indicated in the Application that the ‘continuity’ of Yugoslavia with the former Socialist Federal Republic of Yugoslavia, a Member of the United Nations, ‘has been vigorously contested by the entire international community, . . .  including by the United Nations Security Council . . . as well as by the General Assembly’ (I.C.J. Reports 1993, p. 12, para. 15). The Order of 8 April 1993 was made in a different case; but as the Court observed in a previous case in which questions of res judicata and Article 59 of the Statute were raised, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’ (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28)”. Legality of Use of Force (Serbia Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1049, para. 97. Previous: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 292, para. 28.

Revision or Interpretation of the Judgment Revision of the Judgment – procedure “Similarly, in its Judgment of 3 February 2003 in the Application for Revision case, the Court, when it began by examining whether the conditions for the opening of the revision procedure, laid down by Article 61 of the Statute, were satisfied,



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undoubtedly recognized that an application could be made for revision of a judgment on preliminary objections; this could in turn only derive from a recognition that such a judgment is ‘final and without appeal’. Furthermore, the contention put forward by the Respondent would signify that the principle of res judicata would not prevent a judgment dismissing a preliminary objection from remaining open to further challenge indefinitely, while a judgment upholding such an objection, and putting an end to the case, would in the nature of things be final and determinative as regards that specific case”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 91, para. 117.

Revision of the judgment “For the Court res judicata pro veritate habetur, and the judicial truth within the context of a case is as the Court has determined it, subject only to the provision in the Statute for revision of judgments. This result is required by the nature of the judicial function, and the universally recognized need for stability of legal relations”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 101, para. 139.

Request for interpretation – No judgment on the question in the original judgment, therefore, no admissibility of the same for interpretation “The Avena Judgment nowhere lays down or implies that the courts in the United States are required to give direct effect to paragraph 153 (9). The obligation laid down in that paragraph is indeed an obligation of result which clearly must be performed unconditionally; non-performance of it constitutes internationally wrongful conduct. However, the Judgment leaves it to the United States to choose the means of implementation, not excluding the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law. Nor moreover does the Avena Judgment prevent direct enforceability of the obligation in question, if such an effect is permitted by domestic law. In short, the question is not decided in the Court’s original Judgment and thus cannot be submitted to it for interpretation under Article 60 of the Statute (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402)”.

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Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44. Previous: Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402.

Request for interpretation – General provision “The Court stated that the decision rendered on the request for the indication of provisional measures ‘in no way prejudges any question that the Court may have to deal with relating to the Request for interpretation’ (ibid., p. 331, para. 79)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 9, para. 15.

Existence of dispute essential for admissibility of request for interpretation “As is clear from the settled jurisprudence of the Court, a dispute must exist for a request for interpretation to be admissible (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 216–217, para. 44; see also Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 36, para. 12)”. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 10, para. 21. Previous: Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 402. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 216–217, para. 44. Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 36, para. 12.



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Jurisdiciton – Mention in operative paragraph for the reserved matters only “Even where the Court has, in a preliminary judgment, specifically reserved certain matters of jurisdiction for later decision, the judgment may nevertheless contain a finding that ‘the Court has jurisdiction’ in the case, this being understood as being subject to the matters reserved (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442, para. 113 (1) (c), and pp. 425–426, para. 76; cf. also, in connection with an objection to admissibility, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1998, p. 29, para. 51, and pp. 30–31, paras. 53 (2) (b) and 53 (3); p. 134, para. 50, and p. 156, paras. 53 (2) (b) and 53 (3))”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 96, para. 127. Previous: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 442, para. 113 (1) (c), and pp. 425–426, para. 76. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of America), I.C.J. Reports 1998, p. 29, para. 51, and pp. 30–31, paras. 53 (2) (b) and 53 (3); p. 134, para. 50, and p. 156, paras. 53 (2) (b) and 53 (3).

Res judicata Res judicata “Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to ‘decide’, that is, to bring to an end, ‘such disputes as are submitted to it’. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 90, para. 116.

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“The Court will however observe that the decision on questions of jurisdiction, pursuant to Article 36, paragraph 6, of the Statute, is given by a judgment, and Article 60 of the Statute provides that ‘[t]he judgment is final and without appeal’, without distinguishing between judgments on jurisdiction and admissibility, and judgments on the merits. In its Judgment of 25 March 1999 on the request for interpretation of the Judgment of 11 June 1998 in the case of the Land and Maritime Boundary between Cameroon and Nigeria, the Court expressly recognized that the 1998 Judgment, given on a number of preliminary objections to jurisdiction and admissibility, constituted res judicata, so that the Court could not consider a submission inconsistent with that judgment (Judgment, I.C.J. Reports 1999 (I), p. 39, para. 16)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 91, para. 117. Previous: Land and Maritime Boundary between Cameroon and Nigeria, Judgment, I.C.J. Reports 1999 (I), p. 39, para. 16.

Judgment res judicata – Judgments on jurisdiction and admissibility and merits not being distinguished per se “The Court will however observe that the decision on questions of jurisdiction, pursuant to Article 36, paragraph 6, of the Statute, is given by a judgment, and Article 60 of the Statute provides that ‘[t]he judgment is final and without appeal’, without distinguishing between judgments on jurisdiction and admissibility, and judgments on the merits. In its Judgment of 25 March 1999 on the request for interpretation of the Judgment of 11 June 1998 in the case of the Land and Maritime Boundary between Cameroon and Nigeria, the Court expressly recognized that the 1998 Judgment, given on a number of preliminary objections to jurisdiction and admissibility, constituted res judicata, so that the Court could not consider a submission inconsistent with that judgment (Judgment, I.C.J. Reports 1999 (I), p. 39, para. 16)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 91, para. 117. Previous: Land and Maritime Boundary between Cameroon and Nigeria, Judgment, I.C.J. Reports 1999 (I), p. 39, para. 16.



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Nature of judgment final and binding – Revision procedure – res judicata “Similarly, in its Judgment of 3 February 2003 in the Application for Revision case, the Court, when it began by examining whether the conditions for the opening of the revision procedure, laid down by Article 61 of the Statute, were satisfied, undoubtedly recognized that an application could be made for revision of a judgment on preliminary objections; this could in turn only derive from a recognition that such a judgment is ‘final and without appeal’. Furthermore, the contention put forward by the Respondent would signify that the principle of res judicata would not prevent a judgment dismissing a preliminary objection from remaining open to further challenge indefinitely, while a judgment upholding such an objection, and putting an end to the case, would in the nature of things be final and determinative as regards that specific case”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 91, para. 117.

Res judicata – Judgment on preliminary objections – Context as a determining factor “The Court does not however consider that it was the purpose of Article 79 of the Rules of Court to limit the extent of the force of res judicata attaching to a judgment on preliminary objections, nor that, in the case of such judgment, such force is necessarily limited to the clauses of the disposit if specifically rejecting particular objections. There are many examples in the Court’s jurisprudence of decisions on preliminary objections which contain a general finding that the Court has jurisdiction, or that the application is admissible, as the case may be; and it would be going too far to suppose that all of these are necessarily superfluous conclusions. In the view of the Court, if any question arises as to the scope of res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given (cf. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 218–219, para. 48)”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 95, para. 125. Previous: Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 218–219, para. 48.

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“For this purpose, in respect of a particular judgment it may be necessary to distinguish between, first, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly any peripheral or subsidiary matters, or obiter dicta; and finally matters which have not been ruled upon at all. Thus an application for interpretation of a judgment under Article 60 of the Statute may well require the Court to settle ‘[a] difference of opinion [between the parties] as to whether a particular point has or has not been decided with binding force’ (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J. Series A, No. 13, pp. 11–12). If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general finding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 95, para. 126. Previous: Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J. Series A, No. 13, pp. 11–12.

Res judicata – Subsequent examination of jurisdictional issues not prevented “In particular, the fact that a judgment may, in addition to rejecting specific preliminary objections, contain a finding that ‘the Court has jurisdiction’ in the case does not necessarily prevent subsequent examination of any jurisdictional issues later arising that have not been resolved, with the force of res judicata, by such judgment”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 95, para. 127.

Res judicata – Time-limits on re-opening of case “On the other hand, the fact that the Court has in these past cases dealt with jurisdictional issues after having delivered a judgment on jurisdiction does not support the contention that such a judgment can be reopened at any time, so as to permit reconsideration of issues already settled with the force of res judicata. The essential difference between the cases mentioned in the previous paragraph and the present case is this: the jurisdictional issues examined at a late stage in



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those cases were such that the decision on them would not contradict the finding of jurisdiction made in the earlier judgment. In the Fisheries Jurisdiction cases, the issues raised related to the extent of the jurisdiction already established in principle with the force of res judicata; in the Military and Paramilitary Activities case, the Court had clearly indicated in the 1984 Judgment that its finding in favour of jurisdiction did not extend to a definitive ruling on the interpretation of the United States reservation to its optional clause declaration. By contrast, the contentions of the Respondent in the present case would, if upheld, effectively reverse the 1996 Judgment; that indeed is their purpose”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 96, para. 128.

Res judicata – Clarification – Contradiction between decision on jurisdictional issues in the later and earlier judgments “On the other hand, the fact that the Court has in these past cases dealt with jurisdictional issues after having delivered a judgment on jurisdiction does not support the contention that such a judgment can be reopened at any time, so as to permit reconsideration of issues already settled with the force of res judicata. The essential difference between the cases mentioned in the previous paragraph and the present case is this: the jurisdictional issues examined at a late stage in those cases were such that the decision on them would not contradict the finding of jurisdiction made in the earlier judgment. In the Fisheries Jurisdiction cases, the issues raised related to the extent of the jurisdiction already established in principle with the force of res judicata; in the Military and Paramilitary Activities case, the Court had clearly indicated in the 1984 Judgment that its finding in favour of jurisdiction did not extend to a definitive ruling on the interpretation of the United States reservation to its optional clause declaration. By contrast, the contentions of the Respondent in the present case would, if upheld, effectively reverse the 1996 Judgment; that indeed is their purpose”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 96, para. 128.

Res judicata – Establishment of jurisdiction – Question of capacity of party precedes ratione materiae “Since, as observed above, the question of a State’s capacity to be a party to proceedings is a matter which precedes that of jurisdiction ratione materiae, and one which the Court must, if necessary, raise ex officio (see paragraph 122 above), this

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finding must as a matter of construction be understood, by necessary implication, to mean that the Court at that time perceived the Respondent as being in a position to participate in cases before the Court. On that basis, it proceeded to make a finding on jurisdiction which would have the force of res judicata”. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 98, para. 132.

Sub Chapter IV Advisory Proceedings General Advisory opinion – Type of question “It is . . . a precondition of the Court’s competence that the advisory opinion be requested by an organ duly authorized to seek it under the Charter, that it be requested on a legal question, and that, except in the case of the General Assembly or the Security Council, that question should be one arising within the scope of the activities of the requesting organ.’ (Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, pp. 333–334, para. 21)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 144, para. 14. Previous: Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J.Reports 1982, pp. 333–334, para. 21.

Advisory opinion – Type and content of question within the activities of the organ “It is . . . a precondition of the Court’s competence that the advisory opinion be requested by an organ duly authorized to seek it under the Charter, that it be requested on a legal question, and that, except in the case of the General Assembly or the Security Council, that question should be one arising within the scope of the activities of the requesting organ.’ (Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, pp. 333–334, para. 21)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 144, para. 14. Previous: Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, l. CJ.Reports 1982, pp. 333–334, para. 21.



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Purpose of advisory opinion “As is clear from the Court’s jurisprudence, advisory opinions have the purpose of furnishing to the requesting organs the elements of law necessary for them in their action. In its Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court observed: ‘The object of this request for an Opinion is to guide the United Nations in respect of its own action.’ (I.C.J. Reports 1951, p. 19)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 162, para. 60. Previous: Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, p. 19.

Advisory opinion assists in further treatment of an issue by the General Assembly “The Court found on another occasion that the advisory opinion it was to give would ‘furnish the General Assembly with elements of a legal character relevant to its further treatment of the decolonization of Western Sahara’ (Western Sahara, I.C.J. Reports 1975, p. 37, para. 72)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 163, para. 60. Previous: Western Sahara. I.C.J. Reports 1975, p. 37, para. 72.

Purpose sought to be achieved by the requesting organ “With regard to the argument that the General Assembly has not made it clear what use it would make of an advisory opinion on the wall, the Court would recall, as equally relevant in the present proceedings, what it stated in its Opinion on the Legality of the Threat or Use of Nuclear Weapons: ‘Certain States have observed that the General Assembly has not explained to the Court for what precise purposes it seeks the advisory opinion. Nevertheless, it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs.’ (I.C.J. Reports 1996 (I), p. 237, para. 16)”.

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 163, para. 61. Previous: Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), p. 237, para. 16.

No serving of any useful purpose argument, not a valid reason to decline the advisory opinion “It follows that the Court cannot decline to answer the question posed based on the ground that its opinion would lack any useful purpose. The Court cannot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion, namely the General Assembly. Furthermore, and in any event, the Court considers that the General Assembly has not yet determined all the possible consequences of its own resolution. The Court’s task would be to determine in a comprehensive manner the legal consequences of the construction of the wall, while the General Assembly and the Security Council may then draw conclusions from the Court’s findings”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 163, para. 62.

Purpose of mandate in the context of the system of trusteeship “The Court recalls that in its Advisory Opinion on the International Status of South West Africa, speaking of mandates in general, it observed that ‘The Mandate was created, in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object – a sacred trust of civilization.’ (I.C.J. Reports 1950, p. 132)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 165, para. 70. Previous: International Status of South West Africa, I.C.J. Reports 1950, p. 132.

Jurisdiction Of The Court Advisory opinion – Jurisdiction “When seised of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be in the affirmative, there is any reason why it should decline to exer-



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cise any such jurisdiction (see Legality of the Threat or Use of nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 144, para. 13. Previous: Legality of the Threat or Use of nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10.

Advisory opinion – Jurisdiction – Exercise of jurisdiction “When seised of a request for an advisory opinion, the Court must first consider whether it has jurisdiction to give the opinion requested and whether, should the answer be in the affirmative, there is any reason why it should decline to exercise any such jurisdiction (see Legality of the Threat or Use of nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 144, para. 13. Previous: Legality of the Threat or Use of nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10.

Legal character of a question for advisory opinion “The question submitted by the General Assembly has thus, to use the Court’s phrase in its Advisory Opinion on Western Sahara, ‘been framed in terms of law and raises problems of international law’; it is by its very nature susceptible of a reply based on law; indeed it is scarcely susceptible of a reply otherwise than on the basis of law. In the view of the Court, it is indeed a question of a legal character (see Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 153, para. 37. Previous: Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15.

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The Peaceful Settlement of International Disputes Advisory opinion – Jurisdiction – No effect of lack of clarity of drafting of a question

“The Court would point out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently been given by the Court”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 153, para. 38.

Advisory opinion – Infelicitioiusly expressed and vague question “The Court noted in one case that ‘the question put to the Court is, on the face of it, at once infelicitously expressed and vague’ (Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 154, para. 38. Previous: Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal.Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46.

Legal question having political aspects – Judicial task “The Court considers that the fact that a legal question also has political aspects, ‘as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a ‘legal question’ and to ‘deprive the Court of a competence expressly conferred on it by its Statute’ (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14). Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law (cf. Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948. I.C.J. Reports 1947–1948, pp. 61–62; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950. pp. 6–7; Certain Expenses of the United Nations (Article 17, paragraph 2, of



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the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).’ (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 152, para. 34. Previous: Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14. Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948. I.C.J. Reports 1947–1948, pp. 61–62. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950. pp. 6–7. Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 13.

Legal question having political aspects “In its Opinion concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, the Court indeed emphasized that, ‘in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate . . .’ (I.C.J. Reports 1980, p. 87, para. 33). The political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion’ (I.C.J. Reports 1996 (I), p. 234, para. 13)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 152, para. 34. Previous: Opinion concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 87, para. 33.

Lack of consent to the Court’s jurisdiction in the contentious cases versus advisory opinion “The Court observes that the lack of consent to the Court’s contentious jurisdiction by interested States has no bearing on the Court’s jurisdiction to give an advisory opinion. In an Advisory Opinion of 1950, the Court explained that: ‘The

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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.’ (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950. p. 71; see also Western Sahara, I.C.J. Reports 1975, p. 24, para. 31)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 157, para. 47. Previous: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71. Western Sahara, I.C.J. Reports 1975, p. 24, para. 31.

Declining of advisory opinion – Factors of lack of consent and judicial property of the question and the linkage between the two “Commenting on its 1950 decision, the Court explained in its Advisory Opinion on Western Sahara that it had ‘Thus . . . 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.’ The Court continued: ‘In certain circumstances . . . 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 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.’ (Western Sahara, I.C.J. Reports 1975, p. 25, paras. 32–33)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 158, para. 47. Previous: Western Sahara, I.C.J. Reports 1975, p. 25, paras. 32–33.



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Existence of differences of views on legal issues of advisory proceedings “However, as the Court has itself noted, ‘Differences of views . . . on legal issues have existed in practically every advisory proceeding’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 158, para. 48. Previous: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34.

Function of the Court Advisory opinion – Judicial task “It is for the Court to satisfy itself that the request for an advisory opinion comes from an organ or agency having competence to make it. In the present instance, the Court notes that the General Assembly, which seeks the advisory opinion, is authorized to do so by Article 96, paragraph I, of the Charter, which provides: ‘The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 145, para. 15.

Advisory opinion – Judicial task and mean and method of reply “In the present instance, the Court will only have to do what it has often done in the past, namely ‘identify the existing principles and rules, interpret them and apply them  . . . , thus offering a reply to the question posed based on law’ (Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 154, para. 38. Previous: Legality of the Threat or Use of Nuclear Weapons. I.C.J. Reports 1996 (I), p. 234, para. 13.

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The Peaceful Settlement of International Disputes Discretion in the Exercise of the Advisory Opinion Discretion of court in giving advisory opinion on any legal question abstract or otherwise

“The Court does not consider that what is contended to be the abstract nature of the question posed to it raises an issue of jurisdiction. Even when the matter was raised as an issue of propriety rather than one of jurisdiction, in the case concerning the Legality of the Threat or Use of Nuclear Weapons, the Court took the position that to contend that it should not deal with a question couched in abstract terms is ‘a mere affirmation devoid of any justification’ and that ‘the Court may give an advisory opinion on any legal question abstract or otherwise’ (I.C.J. Reports 1996 (1), p. 236, para. 15, referring to Conditions of Admission of a State to membership in the United Nations (Article 4 of the Charter, Advisory Opinion. 1948. I.C.J. Reports 1947–1948, p. 61; Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 51; and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40). In any event, the Court considers that the question posed to it in relation to the legal consequences of the construction of the wall is not an abstract one, and moreover that it would be for the Court to determine for whom any such consequences arise”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 154, para. 40. Previous: Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (1), p. 236, para. 15. Conditions of Admission of a State to membership in the United Nations (Article 4 of the Charter, Advisory Opinion. 1948. I.C.J. Reports 1947–1948, p. 61; Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 51. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40.

Discretionary power of the court to decline to give an advisory opinion “The Court has recalled many times in the past that Article 65, paragraph 1, of its Statute, which provides that ‘The Court may give an advisory opinion . . .’ (emphasis added), should be interpreted to mean that the Court has a discretionary power to decline to give an advisory opinion even if the conditions of



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jurisdiction are met (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion. I.C.J. Reports 1996, pp. 234–235, para. 14)”. Wall Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion. I.C.J. Reports 1996, pp. 234–235, para. 14.

Declining of advisory opinion on the basis of lack of jurisdiction not on the basis of judicial property “The present Court has never in the exercise of this discretionary power, declined to respond to a request for an advisory opinion. Its decision not to give the advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict requested by the World Health Organization was based on the Court’s lack of jurisdiction and not on considerations of judicial propriety (see I.C.J. Reports 1996 (I), p. 235, para. 14)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 156, para. 44. Previous: Legality of the Use by a State of Nuclear Weapons in Armed Conflict, I.C.J. Reports 1996 (I), p. 235, para. 14.

Decline of advisory opinion – Example of specific reasons or circumstances “Only on one occasion did the Court’s predecessor, the Permanent Court of International Justice, take the view that it should not reply to a question put to it (Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J. Series B, No. 5), but this was due to ‘the very particular circumstances of the case, among which were that the question directly concerned an already existing dispute, one of the States parties to which was neither a party to the Statute of the Permanent Court nor a Member of the League of Nations, objected to the proceedings, and refused to take part in any way’ (Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 235–236, para. 14)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 156, para. 44. Previous: Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J. Series B, No. 5. Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 235–236, para. 14.

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The Peaceful Settlement of International Disputes Court in principle not to decline giving an advisory opinion – Except compelling reasons

“Given its responsibilities as the ‘principal judicial organ of the United Nations’ (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. In accordance with its consistent jurisprudence, only ‘compelling reasons’ should lead the Court to refuse its opinion (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisor), Opinion, I.C.J. Reports 1962, p. 155; see also, for example, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78–79, para. 29)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 156, para. 44. Previous: Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisor), Opinion, I.C.J. Reports 1962, p. 155. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78–79, para. 29.

Advisory Procedures Advisory opinion – Task in the participation in the activities of the Organisation “The Court however is mindful of the fact that its answer to a request for an advisory opinion ‘represents its participation in the activities of the Organization, and, in principle, should not be refused’ (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71: see also for example, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion. I.C.J. Reports 1999 (I), pp. 78–79, para. 29)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 156, para. 44. Previous: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase. Advisory Opinion, I.C.J. Reports 1950, p. 71. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights. Advisory Opinion. I.C.J. Reports 1999 (I), pp. 78–79, para. 29.



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Concurring Procedures Purpose of seeking advisory opinion – Circumvention of principle of consent to judicial settlement “The object of the request before the Court is to obtain from the Court an opinion which the General Assembly deems of assistance to it for the proper exercise of its functions. The opinion is requested on a question which is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute. In the circumstances, the Court does not consider that to give an opinion would have the effect of circumventing the principle of consent to judicial settlement and the Court accordingly cannot, in the exercise of its discretion, decline to give an opinion on that ground”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 159, para. 50.

Competence of Organs Relationship between question the subject of a request and activities of the organ “Although the above-mentioned provision states that the General Assembly may seek an advisory opinion ‘on any legal question’, the Court has sometimes in the past given certain indications as to the relationship between the question the subject of a request for an advisory opinion and the activities of the General Assembly (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 70; Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 232 and paras. II and 12)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 145, para. 16. Previous: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 70. Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), pp. 232 and paras. II and 12.

Meaning of an advisory opinion and linkage with dispute or situation “A request for an advisory opinion is not in itself a ‘recommendation’ by the General Assembly ‘with regard to [a] dispute or situation’ ”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 145, para. 16.

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Competence of the General Assembly – Primary but not necessarily exclusive “The Court would emphasize that Article 24 refers to a primary, but not necessarily exclusive, competence. The General Assembly does have the power inter alia, under Article 14 of the Charter, to ‘recommend measures for the peaceful adjustment’ of various situations (ibid.). ‘[T]he only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12, namely, that the Assembly should not recommend measures while the Security Council is dealing with the same matter unless the Council requests it to do so.’ (I.C.J. Reports 1962, p. 163)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 148, para. 26.

Scope of activities of the General Assembly and the Security Council “Indeed, the Court notes that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security (see, for example, the matters involving Cyprus, South Africa, Angola, Southern Rhodesia and more recently Bosnia and Herzegovina and Somalia). It is often the case that, while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General. Assembly has taken a broader view, considering also their humanitarian, social and economic aspects”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 149, para. 127.

Procedural Matter – Holding of emergency and regular sessions and validity of the resolution adopted in such sessions “The Court considers that, while it may not have been originally contemplated that it would be appropriate for the General Assembly to hold simultaneous emergency and regular sessions, no rule of the Organization has been identified which would be thereby violated, so as to render invalid the resolution adopting the present request for an advisory opinion”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 152, para. 34.



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Valid adoption of a resolution “As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), a ‘resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed must be presumed to have been validly adopted’ (I.C.J. Reports 1971, p. 22, para. 20)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 152, para. 35. Previous: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 22, para. 20.

Resolution Procedure Weight age of evidence in giving advisory opinion “The Court observes that the question whether the evidence available to it is sufficient to give an advisory opinion must be decided in each particular instance”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 161, para. 56.

Impact of evaluation and interpretation of facts – judicial task “Moreover, the circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 162, para. 58.

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The Peaceful Settlement of International Disputes Effect Impact of advisory opinion on the debates in the General Assembly and disarmament negotiations

“It has . . . been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The Court is aware that, no matter what might be its conclusions in any opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that, the effect of the opinion is a matter of appreciation. The Court has heard contrary positions advanced and there are no evident criteria by which it can prefer one assessment to another. (I.C.J. Reports 1996 (I), p. 237, para. 17; see also Western Sahara, I.C.J. Reports 1975, p. 37, para. 73)”. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 161, para. 56. Previous: Western Sahara, I.C.J. Reports 1975, p. 37, para. 73.

INDICES Covenant of the League of Nations Article 5, p. 43 Article 13, p. 75, 79

Article 14, p. 75, 79 Article 22(4), p. 623 Statute of the Permanent Court of International Justice

Article 35, p. 41 Article 36, p. 404, 451, 533 Charter of the United Nations Chapter I UN Charter, p. 30, 33, 39, 43, 91, 165, 178, 241, 245, 256, 260, 270, 274, 284, 288, 298, 301, 312, 316, 327, 331, 341, 347, 351, 360, 369, 372, 380, 396, 404, 461, 623 Article 1(1), p. 404 Article 1(2), p. 404 Article 1(3), p. 75, 79, 84, 91, 404 Article 1(4), p. 404 Article 2(1), p. 72, 75, 79, 84, 91, 422, 428, 434, 503, 519, 565 Article 2(2), p. 72, 75, 79, 84, 91, 132, 380, 404, 481 Article 2(3), p. 72, 75, 79, 84, 91, 380, 404, 473, 481 Article 2(4), p. 72, 75, 79, 84, 91, 150, 369, 372, 380, 404, 473, 481, 623, 635 Chapter II Article 4, p. 72, 245, 260, 274, 288, 301, 316, 331, 351, 434 Chapter IV Article 10, p. 623, 635 Article 11(2), p. 623 Article 12, p. 623, 635 Article 12(1), p. 623, 635 Article 14, p. 623 Article 17(1), p. 635 Chapter V Article 24, p. 623, 635 Article 24(1), p. 72, 75, 79, 84, 91 Article 25, p. 30, 33, 39, 43, 72, 635

Chapter VI p. 635 Article 33, p. 132, 165, 241, 256, 270, 284, 298, 312, 327, 347, 360, 404 Article 33(1), p. 72, 75, 79, 84, 91 Article 36(3), p. 404 Chapter VII p. 30, 33, 39, 43, 72, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360, 369, 428 Article 51, p. 59, 72, 75, 79, 84, 91, 369, 372, 380, 473, 588, 623 Chapter VIII Article 52, p. 132 Article 52(1), p. 132 Article 52(2), p. 132 Article 53, p. 132 Article 53(1), p. 241, 256, 270, 284, 298, 312, 327, 341, 347, 360 Chapter IX Article 55, p. 75, 79, 84, 91 Article 55(c), p. 473 Article 56, p. 75, 79, 84, 91 Chapter XIV Article 92, p. 231, 404 Article 93, p. 288 Article 93(1), p. 72, 245, 260, 274, 288, 301, 316, 331, 351, 396 Article 93(2), p. 245, 260, 274, 288, 301, 316, 331, 351 Article 94, p. 231, 581 Article 94(1), p. 231, 494, 498, 577, 581

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Indices Chapter XVI Article 102, p. 11, 132, 196, 461 Article 103, p. 30, 33, 39, 43 Article 111, p. 231

Article 95, p. 132 Article 96, p. 623, 635 Article 96(1), p. 623, 635 Article 96(2), p. 635

ICJ Statute Article 1, p. 451 Article 13(4), p. 461 Article 17, p. 617 Article 17(2), p. 443, 507, 565, 617 Article 24, p. 617 Article 24(1), p. 33, 91, 245, 260, 274, 288, 302, 316, 331, 351 Article 26(2), p. 461, 488 Article 31, p. 20, 33, 241, 256, 270, 274, 284, 288, 298, 312, 316, 327, 331, 341, 347, 351, 360, 380, 461, 481, 565, 588 Article 31(1), p. 33 Article 31(2), p. 30, 33, 39, 43, 51, 59, 115, 196, 443 Article 31(3), p. 11, 15, 20, 80, 91, 128, 132, 150, 165, 178, 190, 196, 209, 217, 245, 260, 274, 302, 331, 396, 404, 412, 422, 428, 434, 443, 451, 474, 488, 507, 519, 533, 544, 553, 600 Article 31(5), p. 33, 241, 245, 256, 260, 270, 274, 284, 288, 298, 302, 316, 331, 341, 351, 617 Article 31(6), p. 461 Article 34, p. 245, 260, 274, 288, 302, 316, 331, 351, 396 Article 34(1), p. 245, 260, 274, 288, 302, 316, 331, 351, 396 Article 34(3), p. 30, 33, 43, 72, 80, 91, 245, 260, 274, 288, 302, 316, 331, 351, 380, 396, 412, 451, 481, 533 Article.35, p. 91, 245, 260, 274, 288, 302, 317, 331, 351, 396, 434 Article, 35(1), p. 72, 91, 245, 260, 274, 288, 302, 317, 331, 351, 396 Article 35(2), p. 91, 245, 260, 274, 288, 302, 317, 331, 351, 396 Article 35(3), p. 72, 260, 274, 288, 302 Article 36, p. 72, 132, 196, 245, 260, 274, 288, 302, 317, 331, 351 Article 36(1), p. 30, 39, 132, 187, 224, 232, 245, 260, 274, 288, 302, 317, 331, 351, 380, 404, 422, 474, 481, 494, 507, 519, 544, 546, 553, 565, 581, 595 Article 36(2), p. 128, 132, 141, 150, 165, 209, 217, 232, 241, 245, 256, 260, 274, 288, 302, 312, 317, 327, 331, 341, 347, 351, 369, 380, 396, 404, 422, 428, 451, 474, 494, 498, 533, 565, 577, 581, 588, 600, Article 36(3), p. 380, 404 Article 36(4), p. 132, 341, 423, 451 Article 36(5), p. 451, 533

Article 36(6), p. 80, 91, 165, 245, 260, 274, 288, 302, 317, 331, 351, 396, 404, 451 Article 37, p. 75, 80, 245, 260, 274, 288, 302, 317, 331, 351, 404 Article 38, p. 91, 132, 196, 380, 481, 494, 519, 577, 588, 600 Article 38(1), p. 178, 461, 507, 519 Article 38(2), p. 209 Article 39(3), p. 91 Article 40, p. 11, 173, 196, 245, 260, 274, 288, 302, 317, 331, 351, 461, 507, 565 Article 40(1), p. 115, 165, 173, 217, 412, 451 Article 40(2), p. 11, 20, 30, 33, 39, 43, 51, 59, 72, 91, 132, 150, 165, 187, 190, 209, 217, 224, 232, 396, 404, 412, 423, 428, 435, 443, 451, 488, 498, 519, 533, 544, 553, 577, 581, 588, 600 Article 40(3), p. 11, 20, 30, 33, 39, 43, 51, 55, 59, 72, 91, 115, 128, 132, 150, 165, 178, 187, 190, 196, 209, 241, 245, 256, 260, 270, 274, 284, 288, 298, 302, 312, 317, 327, 332, 341, 347, 351, 360, 369, 380, 396, 404, 412, 423, 428, 435, 443, 451, 461, 474, 481, 488, 498, 507, 533, 553, 565, 581, 588, 600 Article 41, p. 30, 33, 39, 43, 72, 75, 84, 115, 128, 150, 173, 187, 224, 232, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360, 369, 372, 380, 423, 428, 434, 474, 481, 494, 498, 503, 544, 546, 553, 577, 581, 588, 600 Article 41(1), p. 232, 423 Article 43, p. 91, 196 Article 46, p. 196 Article 48, p. 30, 39, 55, 59, 72, 84, 128, 140, 141, 187, 224, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360, 369, 372, 423, 434, 503, 519, 544, 546, 577, 588, 600, 617 Article 49, p. 91, 396 Article 56, p. 380 Article 56–60, p. 232 Article 59, p. 75, 91, 132, 150, 232, 245, 260, 274, 288, 302, 332, 351, 396, 533 Article 60, p. 91, 173, 190, 232, 461, 494, 498, 544, 577, 581 Article 60(6), p. 91 Article 61, p. 91, 173, 246, 260, 274, 288, 302, 317, 332, 351, 435, 488 Article 61(1), p. 91, 246, 260, 274, 288, 302, 317, 332, 351, 435 Article 61(2), p. 246, 260, 274, 288, 302, 317, 332, 351, 435



Indices

Article 62, p. 141, 150¸ 173, 196, 488 Article 63, p. 30, 39, 173 Article 63(1), p. 33, 43, 72, 80, 91, 187, 232, 246, 260, 274, 288, 302, 317, 332, 351, 380, 396, 412, 451, 519, 533 Article 64, p. 190 Article 65, p. 617, 635

1167

Article 65(1), p. 623, 635 Article 65(2), p. 635 Article 66, p. 623 Article 66(1), p. 635 Article 66(2), p. 617, 623, 635 Article 66(4), p. 623, 635 Article 68, p. 617

Rules of Court of the International Court of Justice Article 8, p. 461 Article 13, p. 187, 224, 232 Article 13(1), p. 34, 43, 55, 59, 187, 507 Article 13(2), p. 507 Article 13(3), p. 190 Article 17, p. 461, 488 Article 17(2), p. 461 Article 18(2), p. 461, 488 Article 26(1.b), p. 173 Article 31, p. 11, 15, 55, 59, 84, 140, 166, 196, 372, 404, 507 Article 31(2), p. 435, 503, 519 Article 32, p. 187, 224, 232 Article 32(1), p. 34, 43, 55, 59, 187 Article 34(2), p. 617, 623 Article 35(3), p. 34, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360 Article 37, p. 34 Article 37(1), p. 443, 565 Article 38, p. 11, 132, 190, 246, 261, 274, 288, 302, 317, 332, 352, 565 Article 38(1), p. 288 Article 38(2), p. 132, 166, 190, 217, 241, 256, 261, 270, 288, 412, 423, 443, 565 Article 38(4), p. 30, 40, 72, 187, 224, 241, 246, 256, 261, 270, 274, 284, 288, 298, 302, 312, 317, 324, 332, 341, 347, 352, 360, 380, 423, 474, 481, 494, 544, 577, 588 Article 38(5), p. 173, 246, 261, 270, 274, 284, 288, 298, 302, 317, 332, 341, 352, 360, 435, 503, 519, 565 Article 40(2), p. 80 Article 40(3), p. 80 Article 41, p. 80 Article 42, p. 30, 40, 72, 115, 178, 187, 241, 256, 270, 284, 298, 312, 327, 341, 347, 369, 423, 462, 474, 588, 600 Article 43, p. 30, 34, 40, 43, 72, 80, 91, 232, 246, 261, 274, 288, 302, 317, 332, 352, 380, 396, 412, 451, 481, 519, 533 Article 43(2), p. 412 Article 43(3), p. 519 Article 44, p. 55, 59, 84, 140, 372 Article 45, p. 55, 59, 84, 140, 372 Article 45(2), p. 55, 59, 595 Article 47, p. 246, 261, 274, 288, 302, 317, 352

Article 49(1), p. 217 Article 49(2), p. 84 Article 49(4), p. 412 Article 50, p. 91, 412 Article 50(2), p. 91 Article 51, p. 91 Article 52, p. 91 Article 53(1), p. 141, 150, 396, 412, 435, 443, 451, 533 Article 53(2), p. 11, 20, 34, 43, 51, 59, 80, 91, 115, 132, 150, 166, 178, 196, 209, 217, 232, 246, 261, 274, 288, 302, 317, 332, 352, 380, 396, 404, 412, 428, 435, 443, 451, 462, 481, 488, 507, 519, 533, 553, 565 Article-54, p. 59, 91, 380 Article 54(1), p. 380 Article 56, p. 11, 20, 59, 91, 132, 232, 246, 261, 274, 288, 302, 317, 332, 352, 380, 396, 413, 488, 519, 533, 553 Article 56(1), p. 132, 178, 246, 261, 274¸ 302, 352, 396, 533 Article 56(2), p. 115, 232, 488, 519, 533, 553 Article 56(3), p. 11, 59, 115, 178, 488, 507, 533 Article 56(4), p. 91, 166, 380, 451, 553, 565 Article 57, p. 91, 380, 553 Article 58, p. 59, 91 Article 58(2), p. 178 Article 60, p. 451 Article 60(2), p. 150, 507 Article 61(4), p. 11, 20, 30, 40, 59, 91, 209, 217, 232, 380, 396, 428, 462, 507, 519, 533, 553 Article, 62, p. 30, 40, 209 Article 62(1), p. 92, 209, 396 Article 62(2), p. 92 Article 64, p. 553 Article 66, p. 115 Article 66(3), p. 173 Article 69(2), p. 34, 43 Article 69(3), p. 30, 34, 40, 43, 380, 413, 451, 481, 533 Article 70, p. 92 Article 70(2), p. 92 Article 72, p. 11, 20, 51, 59, 115, 150, 380, 396, 413, 428, 462, 507, 533, 553 Article 73, p. 30, 40, 72, 75, 92, 128, 187, 224, 232, 241, 246, 256, 261, 270, 274, 284, 288,

1168

Indices

298, 302, 312, 317, 327, 332, 341, 347, 352, 360, 369, 423, 474, 481, 494, 498, 503, 544, 546, 553, 577, 582, 588, 600 Article 73(2), p. 30, 40, 72, 75, 128, 187, 224, 241, 246, 256, 261, 270, 274, 284, 288, 298, 302, 312, 317, 327, 332, 341, 347, 352, 360, 369, 380, 423, 435, 474, 481, 494, 544, 546, 553, 577, 588, 600 Article 74, p. 30, 40, 72, 75, 128, 187, 224, 232, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360, 369, 380, 423, 435, 474, 481, 494, 498, 503, 544, 546, 577, 582, 588, 600 Article 74, p. 369 Article 74(2), p. 435, 503 Article 74(3), p. 30, 40, 75, 128, 187, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360, 369, 423, 435, 474, 494, 503, 544, 546, 577, 588, 600 Article 74(4), p. 30, 40, 75, 173, 187, 224, 369, 588, 600 Article 75, p. 30, 40, 72, 75, 128, 187, 224, 232, 369, 474, 494, 498, 577, 582, 588, 600 Article 75(1), p. 75, 224, 232, 241, 256, 270, 284, 298, 312, 327, 341, 347, 360, 369, 423 Article 75(2), p. 72, 75, 128, 369, 423, 588 Article 75(3), p. 75, 544, 546, 600 Article 76, p. 75 Article 78, p. 75 Article 79, p. 34, 43, 55, 59, 92, 132, 173, 232, 380, 423, 451 Article 79(1), p. 34, 43, 51, 59, 80, 84, 92, 209, 217, 246, 261, 274, 288, 302, 317, 332, 352, 396, 435, 443, 451 Article 79(2), p. 380, 481 Article 79(3), p. 43, 51, 80, 92, 128, 150, 217, 246, 261, 274, 288, 302, 317, 332, 352, 380, 396, 481 Article 79(5), p. 217, 443, 451 Article 79(6), p. 80, 92

Article 79(7), p. 34, 43, 51, 92, 150, 166, 209, 396 Article 79(9), p. 451 Article 80, p. 55, 59, 84, 92, 140, 372, 380, 533, 553 Article 80(1), p. 55, 59, 84, 92, 140, 380, 595 Article 80(2), p. 55, 59, 84, 92, 140, 372, 595 Article 80(3), p. 55, 59, 84, 372 Article 81, p. 141, 150 Article 81(2.a), p. 141, 150 Article 81(2.b), p. 141, 150 Article 81(2.c), p. 141, 150 Article 83, p. 141, 150 Article 83(1), p. 141, 150 Article 83(2), p. 141, 150 Article 84, p. 141, 150 Article 85, p. 141, 150 Article 85(1), p. 150 Article 85(3), p. 150 Article 88, p. 246, 261, 274, 288, 302, 317, 332, 352 Article 89, p. 246, 261, 274, 288, 302, 317, 332, 352 Article 92(2), p. 488 Article 97, p. 190 Article 98, p. 190, 494, 498, 577, 582 Article 98(1), p. 190, 577 Article 98(2), p. 498, 582 Article 98(3), p. 190, 498, 582 Article 98(4), p. 190, 498, 582 Article 99, p. 261, 274, 288, 302, 352, 435, 488 Article 99(2), p. 435, 489 Article 99(3), p. 435 Article 100, p. 489, 494, 498, 577, 582 Article 100(1), p. 489 Article 102(1), p. 617 Article 105, p. 623 Article 106, p. 623, 635

International Court of Justices Cases and Advisory Opinions Aegean Sea Continental Shelf (Greece v. Turkey), p. 12, 21, 73, 133, 166, 247, 262, 276, 290, 304, 319, 333, 353, 405, 413, 534 Admissibility of Hearings of Petitioners by the Committee on South West Africa, p. 116, 444, 623 Aerial Incident of 10 March 1953 (USA v. Czechoslovakia), p. 566 Aerial Incident of 4 September 1954 (USA v. USSR), p. 566 Aerial Incident of 7 November 1954 (USA v. USSR), p. 566 Aerial Incident of 27 July 1955 (Israel v. Bulgaria), p. 247, 262, 276, 290, 304, 318, 333, 353 Aerial Incident of 3 July 1988 (Iran v. USA), p. 52

Aerial Incident of 10 August 1999 (Pakistan v. India), p. 247, 262, 276, 290, 304, 319, 333, 353 Anglo-Iran Oil Company, p. 94, 133, 166, 241, 256, 341, 381, 404, 482, 566 Antarctica (UK v. Chile), p. 566 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), p. 93, 452 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), p. 93, 247, 262, 276, 289, 304, 318, 333, 353, 489, 578 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, p. 55, 187, 225, 233, 247, 262, 275, 289, 303, 318, 333, 353, 372, 381, 397, 435, 444,



Indices

475, 482, 489, 508, 519, 534, 547, 566, 589, 595, 601 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), p. 601 Application of the Convention of 1902 Governing the Guardianship of Infants, Judgment, p. 60, 247, 262, 275, 289, 303, 318, 333, 353 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, p. 80, 94, 134, 444 Application for Review of UNAT Judgment No. 158, p. 191, 623, 636 Application for Review of UNAT Judgment No. 273 of the United Nations Administrative Tribunal, p. 623, 636 Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) p. 20, 178, 413, 414, 452 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) p. 20, 233, 382, 482, 874, 951, 953 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), p. 93, 397, 544, 547, 566 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), p. 94, 547, 589, 595 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), p. 382, 423, 482, 567 Asylum (Colombia / Peru), p. 429 Avena and Other Mexican Nationals (Mexico v. United States of America), p. 93, 218, 382, 397, 494, 499, 577, 582 Barcelona Traction, Light and Power Company Ltd. (New Application. 1962) (Belgium v. Spain), p. 35, 44, 210, 218, 246, 261, 275, 289, 303, 318, 332, 352, 624 Border and Transborder Armed Actions, p. 34, 44, 134, 167, 383, 423, 452, 483, 600 Certain Expenses of the United Nations, p. 178, 624, 636 Certain Criminal Proceedings in France (Republic of the Congo v. France), p. 495, 545, 547, 578, 589, 601 Certain Norwegian Loans, p. 133, 166, 247, 262, 276, 290, 304, 318, 333, 353, 404 Certain Phosphate Lands in Nauru (Nauru v. Australia), p. 60, 93, 134, 166, 218, 382, 397, 413, 429, 534, 566 Certain Property (Liechtenstein v. Germany), p. 383, 483, 595

1169

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), p. 218 Chorzów Factory, p. 11, 92, 232, 381, 494, 498, 534, 553, 582, 623 Conditions of Admission of a State to Membership in the United Nations, p. 624, 636 Competence of the General Assembly for the Admission of a State to the United Nations, p. 233, 624 Continental Shelf (Tunisia/Libya), p. 21, 93, 133, 134, 151, 247, 262, 276, 289, 304, 318, 333, 353, 414, 489, 519, 578 Corfu Channel (UK v. Albania), p. 76, 80, 93, 178, 381, 482, 565 Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, p. 383, 624, 636 East Timor (Portugal v. Australia), p. 34, 44, 80, 134, 241, 256, 270, 298, 312, 327, 341, 347, 360, 382, 397, 444, 475, 482, 624, 636 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, p. 624 Elettronica Sicula S.p.A (ELSI) (USA v. Italy), p. 210, 429 Fisheries (UK v. Norway), p. 150, 166, 508, 520 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), p. 93, 133, 232, 381, 429, 482, 534, 544, 566 Fisheries Jurisdiction (Spain v. Canada), p. 247, 256, 262, 275, 289, 303, 312, 318, 327, 333, 341, 347, 352, 405, 413, 429, 451 Fisheries Jurisdiction (UK v. Iceland), p. 93, 116 Frontier Dispute (Benin / Niger), p. 414, 508 Frontier Dispute (Burkina Faso / Republic of Mali), p. 20, 94, 151, 179, 197, 210, 233, 382, 405, 414, 435, 462, 482, 503, 520 Gabčikovo-Nagymaros Project (Hungary / Slovakia), p. 382, 545, 624 Gulf of Maine (Canada / USA), p. 20, 152, 414, 508, 520 Haya de la Torre (Colombia v. Peru), Case, p. 624 Interhandel (Switzerland v. USA), p. 133, 166, 209, 429 International Status of South West Africa (Ethiopia v. South Africa), p. 624 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, p. 116, 624

1170

Indices

Interpretation of Peace Treaties (First phase), p. 34, 44, 80, 133, 383, 452, 483, 624, 636 Interpretation of Peace Treaties (Second phase), p. 116 Judgments of the Administrative Tribunal of the ILO upon Complaints made against Unesco, p. 636 Kasikili / Sedudu Island (Botswana / Namibia), p. 150, 197, 462, 534, 567, 624 LaGrand (Germany v. USA), p. 94, 152, 232, 382, 495, 566, 578, 589 Land and Maritime Boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), p. 93, 167, 191, 197, 233, 241, 247, 256, 262, 276, 290, 304, 312, 319, 327, 333, 341, 347, 353, 369, 372, 381, 397, 414, 462, 494, 499, 503, 520, 547, 578, 582, 588, 589, 601 Land, Island and Maritime Frontier Dispute (El Salvador / Honduras: Nicaragua intervening), p. 12, 134, 151, 414, 462, 489, 508 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, p. 94, 383, 636 Legal consequences for States of the Continued Presence of South Africa, p. 116, 178, 617, 624, 636 Legality of the Threat or Use of Nuclear Weapons, p. 60, 116, 241, 256, 270, 284, 298, 312, 327, 347, 545, 625, 637 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, p. 178, 197, 474, 625 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, p. 93, 396 Legality of Use of Force (Yugoslavia v. Belgium), p. 382, 423, 475, 482 Legality of Use of Force (Yugoslavia v. Spain), p. 381, 423, 474, 482 Legality of Use of Force (Yugoslavia v. USA), p. 381, 482 Lockerbie (Libya v. UK), p. 134, 191, 369, 423 Lockerbie (Libya v. USA), p. 134, 191, 369, 452 Lockerbie (Libya v. UK) (Libya v. USA), p. 93, 151, 218, 248, 262, 276, 290, 304, 319, 333, 353, 382, 383, 397, 429, 452, 474, 483, 600, 637 Legal Status of Eastern Greenland, p. 20, 196, 382, 413, 462, 474, 481, 482, 507 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), p. 15, 151, 167, 197, 413, 508, 520

Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), p. 21, 151, 520, 965, 968, 990 Maritime Delimitation in the Black Sea (Romania v. Ukraine), p. 534 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), p. 34, 44, 51, 60, 73, 76, 80, 93, 94, 116, 133, 151, 167, 178, 353, 369, 381, 405, 414, 423, 429, 482, 483, 508, 519, 534, 567, 625, 637 The Minquiers and Ecrehos (France / UK), p. 151, 166, 197, 413 Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and USA), p. 133, 369, 382, 414, 566 North Sea Continental Shelf (FR Germany / Denmark; FR Germany v. The Netherlands), p. 20, 116, 133, 151, 397, 413, 508, 519 Northern Cameroons, (Cameroon v. UK), p. 34, 44, 80, 133, 166, 246, 261, 275, 289, 303, 318, 332, 352, 382, 397, 423, 428, 444, 452 Nottebohm, (Liechtenstein v. Guatemala), p. 34, 44, 166, 397, 428 Nuclear Tests (Australia v. France), p. 34, 44, 94, 133, 167, 174, 187, 225, 233, 246, 261, 275, 289, 303, 318, 332, 352, 382, 404, 423, 428, 451, 482, 508, 534 Nuclear Tests (New Zealand v. France), p. 94, 133, 167, 174, 233, 247, 262, 275, 289, 303, 318, 332, 352, 382, 428, 451, 482, 508, 534 Oil Platforms (Iran v. USA), p. 178, 197, 241, 247, 256, 262, 270, 276, 284, 290, 298, 304, 312, 318, 327, 333, 347, 353, 372, 381, 397, 452, 567, 595, 625 Passage through the Great Belt (Finland v. Denmark), p. 405, 495, 544, 547, 578, 589, 601 Pulp Mills on the Uruguay River (Argentina v. Uruguay), p. 218, 495, 578, 589, 601 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, p. 191, 495, 499, 578, 582 Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/ Libya) (Tunisia v. Libya), p. 93, 191, 247, 262, 276, 289, 304, 318, 333, 353, 435, 489, 495, 499, 578, 582 Right of Passage over Indian Territory (Portugal v. India), p. 34, 44, 133, 166, 241, 256, 312, 327, 428, 444, 566, 595 Rights of Nationals of USA in Morocco (France v. USA), p. 133



Indices

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, p. 73, 80, 94, 382, 435, 474, 482, 625 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), p. 34, 44, 133, 383, 451, 483, 600 Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia / Singapore), p. 519 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia / Malaysia), p. 94, 196, 413, 462, 508, 625 Temple of Preah Vihear (Cambodia v. Thailand), p. 133, 152, 178, 218, 413, 429, 508, 534 Territorial and Maritime Dispute (Nicaragua v. Colombia), p. 414 Territorial Dispute (Libya / Chad), p. 15, 20, 52, 134, 151, 167, 178, 196, 233, 452, 462, 534

1171

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), p. 218, 508, 519, 534 Treatment in Hungary of Aircraft and Crew of United States of America (USA v. Hungary), p. 566 Treatment in Hungary of Aircraft and Crew of United States of America (USA v. USSR), p. 566 United States Diplomatic and Consular Staff in Tehran (USA v. Iran), p. 51, 60, 85, 94, 187, 225, 382, 423, 547, 625 US Diplomatic and Consular Staff in Tehran, p. 60 Vienna Convention on Consular Relations (Paraguay v. USA), p. 225, 233, 495, 578 Western Sahara, Advisory Opinion, p, 151, 625, 637

Treaties 1819 Treaty between Sir Stamford Raffles and Sultan Hussein of Johor and the Temenggong of Johor of 6 February 1819, p. 509 1819 Treaty between the East India Company and the Temenggong of Johor of 30 January 1819, p. 509 1820 General Treaty of Peace of 1820 between the British Government, the Sheikhs of Ras al Khaimah, of Jourat al Kamra, of Abu Dhabi and of Zyah, Sheikh of Dubai, the Chief of Sharjah, the Sheikhs of Bahrain, the Chief of Ajman and the Chief of Umm al Qaywayn, p. 21 1824 Treaty between Great Britain and the Netherlands (Anglo-Dutch Treaty) of 17 March 1824, p. 197, 509 1824 Treaty of Friendship and Alliance between the East India Company and the Sultan of Johor and Temenggong of Johor 2 August 1824 (Crawfurd Treaty), p. 509 1827 Boundary Convention between Baden and France of 30 January 1827, p. 179 1836 Treaty between Spain and the Sultan of Sulu of 23 September 1836, p. 197 1850 Treaty between Nicaragua and Queen of Spain recognizing Nicaragua’s independence from Spain, p. 414 1851 Act of Re-Submission between Spain and the Sultan of Sulu of 19 April 1851, p. 197

1851 Commercial Treaty between Sardinia and Switzerland of 8 June 1851 1853 Treaty of Maritime Peace of 24 August 1853, p. 21 1857 Peace Treaty of 8 December 1857 (Cañas-Martinez” Peace Treaty), p. 535 1857 Treaty of Limits, p. 535 1858 Treaty of Limits of 15 April 1858 (the Jerez-Cañas Treaty), p. 535 1861 Perpetual Treaty of Peace and Friendship between British Government and the Sheikh Mahomed bin Khalifah (independent ruler of Bahrain) of 31 May 1861, p. 21 1865 Convention for the Cape Spartel Lighthouse between Morocco and a number of maritime Powers, p. 509 1866 Treaty between Honduras and Queen of Spain recognizing Honduras’s independence from Spain of 15 March 1866, p. 414 1868 Agreement between Great Britain and the new Ruler of Bahrain of 6 September 1868, p. 21 1868 Agreement between the Sheikhs of Qatar and the Sheikh of Bahrain of 13 September 1868, p. 21 1869 Ferrer-Medina Treaty between Nicaragua and Honduras of 1869, p. 414 1877 Protocol between Spain, Germany and Great Britain of 11 March 1877, p. 197

1172

Indices

1878 Protocol between Spain and Sulu of 22 July 1878, p. 197 1878 Treaty of Berlin of 13 July 1878, p. 627 1880 Agreement between Lt Col Ross, British Political Resident in the Gulf, Sheikh Isa bin Ali al Khalifah, Chief of Bahrain of 22 December 1880, p. 21 1884 Treaty between Great Britain and the Kings and Chiefs of Old Calabar of 10 September 1884, p. 152 1885 General Act of the Conference of Berlin of 26 February 1885, p. 152 1885 Protocol between Spain, Germany and Great Britain of 7 March 1885, p. 198 1890 Anglo-German Agreement of 1 July 1890, p. 179 1891 Convention between the Netherlands and Great Britain of 20 June 1891, p. 198 1892 Agreement between Sheikh Isa bin Ali, Chief of Bahrain and Lt Col Talbot, British Political Resident in Gulf of 13 March 1892, p. 21 1893 Agreement Great Britain and Germany respecting the Boundaries in Africa of 15 November 1893, p. 152 1894 Franco-German Convention of 15 March 1894, p. 152 1896 Gámez-Bonilla Treaty between Nicaragua and Honduras of 26 December 1896, p. 414 1897 Convention between France and Germany of 23 July 1897, p. 463 1898 Convention between France and Great Britain of 14 June 1898, p. 463 1898 Treaty of Peace of Paris of 10 December 1898, p. 198 1899 Treaty of Peace, p. 198 1899 Hague Convention for the Pacific Settlement of International Disputes of 29 July 1899, p. 21 1900 Treaty of 7 November 1900, p. 198 1904 Convention between France and the Great Britain of 8 April 1904, p. 463 1905 Treaty between the Netherlands and Great Britain of 1905, p. 198 1906 Agreement between France and the Great Britain of 19 October 1906, p. 463 1906 Anglo-German Agreement of 19 March 1906, p. 152 1906 Franco-Britain Convention of 29 May 1906, p. 152, 463 1906 Convention between France and the Great Britain of 29 May 1906, p. 463 1906 Franco-British Agreement of 19 October 1906, p. 463 1907 Hague Convention Respecting the Laws and Customs of War on Land of 18 October 1907, p. 627

1907 Hague Convention of 18 October 1907, p. 21 1907 Hague Regulations on Land Warfare of 1907, p. 76, 81, 85, 96 1907 Hague Regulations Respecting the Laws and Customs of War on Land annexed to the 4th Hague Convention of 18 October 1907, p. 385 1908 Franco-German Convention of 9 April 1908, p. 152 1910 Franco-British Protocol of 19 February 1910, p. 152 1913 Anglo-German Agreement of 11 March 1913, p. 135, 152 1913 Anglo-German Agreement (Protocol) of Obokum of 12 April 1913, p. 135, 152 1913 Anglo-Ottoman Convention Relating to the Persian Gulf and surrounding territories of 29 July 1913, p. 21 1914 Bryan Treaty of 13 October 1914, p. 233 1914 Treaty between Nicaragua and USA (Chamorro-Bryan Treaty) of 5 August 1914, p. 535 1914 Treaty concerning the frontiers of Aden between Ottomans and British Government of 9 March 1914, p. 21 1915 Agreement between Great Britain and the Netherlands of 28 September 1915, p. 198 1916 Treaty between Great Britain and the Sheikh of Qatar of 3 November 1916, p. 21 1919 Treaty of Versailles of 28 June 1919, p. 152, 248, 263, 276, 290, 304, 319, 334, 353, 424 1919 Agreement between H.M Government in London, H.M of the Commonwealth of Australia and H.M of the Dominion of New Zealand of 2 July 1919, p. 76 1919 Franco-British Declaration of 10 July 1919, p. 135 1919 Convention of Saint-German of 1919, p. 52 1919 Treaty between the Allied and Associated Powers (United States of America, the British Empire, France, Italy and Japan) and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities of 10 September 1919, p. 81, 96 1920 Serb-Croat-Slovene Treaty of 1920, p. 76 1922 Convention relating to Upper Silesia, p. 248, 263, 276, 290, 304, 319, 334, 353 1924 Convention between the USA and Canada for the Preservation of the Halibut Fisheries of the Northern Pacific Ocean, p. 167 1925 Petroleum Concession between the Ruler of Bahrain and Eastern and



Indices

General Syndicate Ltd of 2 December 1925, p. 22 1927 Straits Settlement and Johor Territorial Waters Agreement” (the 1927 Agreement) between the Governor of the Straits Settlements and the Sultan of Johor, p. 509 1928 Agreement between Great Britain and the Netherlands of 26 March 1928, p. 198 1928 Anglo-Transjordanian Treaty of 20 February 1928, p. 627 1928 Barcenas-Esguerra Treaty between Nicaragua and Colombia, p. 414 1928 General Act for the Pacific Settlement of International Disputes of 26 September 1928, p. 174, 405 1928 Treaty between Honduras and Nicaragua, p. 415 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, p. 452, 454 1928 Treaty of the Roncador, Quitasueño and Serrana, p. 453 1928 General Act for Conciliation, Judicial Settlement and Arbitration of 26 September 1928, p. 174 1928 Status of Certain Groups of Islands in the Persian Gulf—official British report of the India office, p. 22 1930 Convention between the USA and Canada for the Preservation for the Halibut Fisheries of the Northern Pacific Ocean and Bering Sea, p. 167 1930 Convention between the USA and Great Britain of 2 January 1930, p. 198 1930 Convention of Conciliation, Judicial Settlement and Arbitration between Yugoslavia and Belgium of 3 September 1930, p. 242, 248, 334 1930 Protocol of Exchange of Ratifications, p. 453 1930 Treaty of Arbitration between Guatemala and Honduras, p. 415 1935 Petroleum Concession between Great Britain and the Ruler of Qatar of 17 May 1935, p. 22 1939 Decision of Great Britain of 11 July 1939, p. 22 1940 Soviet-Romanian Agreement of June 28, p. 520 1944 Chicago Convention on International Civil Aviation of 7 December 1944, p. 370, 384, 475, 484 1945 Charter of the International Military Tribunal of Nuremberg, p. 430 1945 Nuremberg Charter, Judgment and Principles of 1945, p. 76

1173

1945 Soviet-Czechoslovak Agreement of June 29, 1945, p. 520 1945 UNESCO Constitution of 16 November 1945, p. 384, 475, 483 1946 Charter of the International Military Tribunal of Tokyo, p. 430 1946 Trusteeship Agreement for the Territory of Cameroon under French Administration of 13 December 1946, p. 152 1946 WHO Constitution of 22 July 1946, p. 384, 475, 483 1946 Protocol to the Paris Act of 14 January 1946 1947 Peace Treaties of 1947, p. 596 1947 Paris Peace Treaty between the Allied and Associated Powers and Romania, p. 520 1947 Privileges and Immunities Convention of 21 November 1947, p. 384, 475, 483 1947 Decision of Great Britain 23 December 1947, p. 22 1948 American Treaty on Pacific Settlement (Pact of Bogota), p. 414, 453, 535 1948 Charter of Organization of American States, p. 452 1948 Convention concerning the regime of navigation on the Danube of 18 August 1948, p. 116 1948 Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, p. 73, 76, 81, 85, 95 1948 Danube Convention, p. 242, 313, 284, 298, 313, 341, 347, 360 1948 Johor Agreement between the British Crown and the Sultan of Johor, p. 509 1948 Protocol to Specify the Line of the State Boundary between Romania and USSR of 4 February 1948, p. 520 1948 the Federation of Malaya Agreement between the British Crown and nine Malay States, p. 509 1948 Universal Declaration of Human Rights of 1948, p. 73, 81, 85, 96 1948 Treaty of Friendship, Commerce and Navigation between the USA and Italy of 2 February 1948 1948 Genocide Convention of 9 December 1948, p. 73, 80, 242, 248, 257, 263, 270, 276, 284, 290, 298, 304, 313, 319, 328, 334, 341, 347, 353, 360, 383, 398, 424, 436, 475, 483 1949 Geneva Conventions of 1949, p. 81, 85, 96, 341, 360, 370, 383, 424, 429, 475 1949 Agreement between Jordan and Israel of 3 April 1949, p. 627 1949 Fourth Geneva Conventions of 1949, p. 73, 76, 627

1174

Indices

1949 General Procès-Verbal between Romania and former USSR of 27 September 1949, p. 520 1949 Geneva Conventions for the Protection of Victims of War of 1949, p. 73, 76 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War, p. 96 1949 International Convention for the Northwest Atlantic Fisheries, p. 167 1949 Procès-Verbal of the Description of the State boundary dated 27 September 1949, p. 520 1949, 1963, and 1974 Procès-Verbaux concluded between Romania and former USSR, p. 520 1950 Convention for the Protection of Human Rights and Fundamental Freedom of the Council of Europe, p. 444 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, p. 424 1950 Agreement between the Ruler of Bahrain and the Ruler of Qatar on the status of Zubarah, p. 22 1952 Convention on the Settlement of Matters arising out of the War and the Occupation between USA, UK, France and FR Germany of 26 May 1952 (Settlement Convention), p. 444 1954 Protocol to the Convention on the Settlement of Matters arising out of the War and the Occupation between USA, UK, France and FR Germany of 26 May 1952 of 23 October 1954, p. 444 1955 Treaty of Amity, Economic Relations and Consular Rights, p. 568 1955 Treaty of Amity, Economic Relations and Consular Rights between the USA and Iran of 15 August 1955, p. 52, 55, 60 1956 Treaty of Friendship, Commerce and Navigation between Nicaragua and USA of 21 January 1956, p. 52 1956 Agreement between Costa Rica and Nicaragua (the Fournier-Sevilla Agreement) 9 January 1956, p. 535 1957 Agreement between the United Kingdom and Malaya, p. 509 1957 European Convention for the Peaceful Settlement of Disputes of 29 April 1957, p. 444 1958 Convention concerning Fishing in the Waters of the Danube of 29 January 1958, p. 116 1958 Geneva Conventions on the Law of the Sea of 29 April 1958, p. 22

1958 Convention on the Continental Shelf, p. 520 1958 Convention on the Territorial Sea and the Contiguous Zone, p. 415 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, p. 167 1958 Geneva Convention on the Territorial Sea, p. 509, 520 1959 North-East Atlantic Fisheries Convention, p. 167 1960 New York Convention on Special Mission of 8 December 1969, p. 429 1961 Agreements between Germany and Italy, p. 596 1961 Montevideo Treaty between Argentina and Uruguay defining the boundary on the River Uruguay, p. 545 1961 Vienna Convention on Diplomatic Relations of 18 April 1961, p. 384, 424, 429, 567 1961 Vienna Convention on Law of Treaties, p. 96, 545 1961 Treaty between Argentina and Uruguay of 7 April 1961 (Montevideo Treaty), p. 554 1963 OAU Charter of 25 May 1963, p. 370, 372, 384, 475, 484 1963 Agreement between the Federation of Malaya, UK, North Borneo, Sarawak and Singapore of 9 July 1963, p. 198 1963 Agreement on the Compensation for Italian nationals subjected to NationalSocialist measures of persecution of 31 July 1963, p. 596 1963 Charter of the Organisation of African Unity, p. 383, 463 1963 Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations, p. 187, 225, 233 1963 Settlement of certain property-related, economic and financial questions of 16 September 1963, p. 596 1963 Vienna Convention on Consular Relations of 24 April 1963, p. 187, 210, 218, 225, 233, 429, 495, 499, 578, 582 1964 Convention establishing the Lake Chad Basin Commission of 22 May 1964, p. 152 1964 Agreement between Cameroon, Chad, Niger and Nigeria of 22 May 1964, p. 135 1965 Agreement relating to the Separation of Singapore from Malaysia, p. 509 1965 Convention on Racial Discrimination of 21 December 1965, p. 383, 475, 483 1965 ICSID (Washington) Convention of 18 March 1965, p. 210



Indices

1966 International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966, p. 96, 589 1966 International Covenant on Civil and Political Rights of 16 December 1966, p. 96, 187, 210, 218, 225, 242, 257, 270, 284, 298, 313, 328, 342, 347, 360, 384, 370, 424, 476, 484, 627 1966 International Covenant on Economic, Social and Cultural Rights of 19 December 1966, p. 242, 257, 270, 284, 298, 313, 328, 342, 348, 360, 627 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967 1969 Vienna Convention on the Law of Treaties, p. 81, 116, 233, 248, 263, 276, 290, 304, 319, 334, 353, 398, 424, 429, 535, 554 1969 Vienna Convention on the Law of Treaties of 1969, p. 73, 179, 384, 475, 484, 627 1969 American Convention on Human Rights (the Pact of San Jose, Costa Rica) of 22 November 1969, p. 218 1969 Convention concerning Reciprocal Legal Assistance in Criminal Matters between France and Spain of 9 April 1969, p. 568 1969 Convention on Special Missions of 8 December 1969, p. 567 1969 Delimitation Agreement between Indonesia and Malaysia of 1969, p. 198 1969 Indonesia-Malaysia Continental Shelf Agreement, p. 509 1969 Vienna Convention on Law of Treaties of 23 May 1969, p. 12, 15, 52, 73, 81, 96, 116, 129, 135, 153, 167, 179, 198, 233, 248, 263, 276, 290, 304, 319, 334, 353, 424, 429, 463, 520, 567, 638 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970, p. 370, 384, 475, 484 1970 Indonesia-Malaysia Territorial Sea Agreement, p. 509 1971 Exchange of Notes between UK and Bahrain of 15 August 1971, p. 22 1971 Exchange of Notes between UK and Qatar of 3 September 1971, p. 22 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971, p. 30, 35, 40, 45, 370, 384, 475, 484

1175

1971 Ramsar Convention on Wetlands of International Importance, p. 535, 554 1971 Yaoundé II Agreement between Cameroon and Nigeria of 4 April 1971, p. 153 1972 Simla Accord of 2 July 1972, p. 405 1972 Treaty concerning the status of Quitasueño, Roncador and Serrana (also known as Vásquez-Saccio Treaty), p. 453 1973 Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts, p. 167 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, p. 535 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973, p. 96, 567 1973 Indonesia-Singapore Territorial Sea Agreement, p. 509 1974 General Procès-Verbal, p. 84(62)1961 Border Régime Treaty between Romania and the USSR, p. 521 1974 Kano Agreement of 1 September 1974, p. 153 1975 Final Act of the Helsinki Conference of 1 August 1975, p. 638 1975 European Convention for the Peaceful Settlement of Disputes of 29 April 1957, p. 596 1975 Maroua Agreement of 1 June 1975, p. 153 1975 Statute of the River Uruguay (signed on 26 February 1975 and entered into force on 18 September 1976), p. 545, 547 1975 Treaty between Uruguay and Argentina of 26 February 1975 (Statue of the River Uruguay), p. 553 1976 Convention of 31 May 1976 on the Regulation of Water Management Issues of Boundary Waters, p. 117 1976 Treaty of Amity and Co-Operation in Southeast Asia, p. 198 1976 Agreement between Hungary and Slovakia of 6 May 1976, p. 116 1976 Convention of 1976 on the Regulation of Water Management Issues of Boundary Waters, p. 116 1977 Additional Protocol of 1977, p. 73, 370 1977 Additional Protocol I of 1977, p. 73, 76, 81, 85, 96 1977 Additional Protocol No. 1 of 1977 on the Protection of Civilians and Civilian Objects in Time of War, p. 242, 257, 270, 284, 298, 313, 328, 341, 348, 360 1977 Additional Protocol II of 1977, p. 81, 96

1176

Indices

1977 Agreement on Mutual Assistance between Hungary and Slovakia of 16 September 1977, p. 116 1977 Treaty on the Construction and Operation of the Gabcikovo-Nagymaros Barrage System of 16 September 1977, p. 117 1977 Franco-British Arbitration on the Delimitation of the Continental Shelf of 1977 1977 Additional Protocols to the Geneva Conventions, p. 429 1977 Additional Protocols I to the Geneva Conventions, p. 383, 475, 627 1978 Vienna Convention on Succession of States in respect of Treaties, p. 73, 313, 328, 348, 398, 405 1978 Agreement concerning the Delimitation of the Continental Shelf in the Black Sea, between Turkey and the USSR on 23 June 1978, p. 521 1978 Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries of 24 October 1978, p. 168 1978 Vienna Convention of 23 August 1978 on Succession of States in respect of Treaties, p. 117 1979 Israel-Egypt Peace Treaty of 1979, p. 617 1979 Common Operational Regulations of Plenipotentiaries fulfilling duties related to the construction and operation of the Gabcikovo-Nagymaros Barrage System of 11 October 1979, p. 117 1979 Convention on Discrimination against Women of 18 December 1979, p. 383, 475, 483 1981 African Charter on Human and Peoples’ Rights of 27 June 1981, p. 218, 384, 476, 484 1982 Law of the Sea Convention of 1982, p. 22, 135, 168, 415, 509, 521 1983 Principles for the Framework for Reaching a Settlement of 1983, p. 15, 22 1983 Principles for the Framework for Reaching a Settlement between UK, Bahrain and Qatar of March 1983, p. 12, 22 1983 Protocol between Hungary and Slovakia of 10 October 1983, p. 117 1984 Agreement of December 1984 between Botswana and South Africa, p. 179 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, p. 96, 384, 475, 484, 601 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment of 10 December 1984, p. 435, 503 1984 New York Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, p. 370 1986 Convention on Mutual Assistance in Criminal Matters between Djibouti and France of 27 September 1986, p. 567 1986 Exchange of Notes of 23 December 1986, p. 521 1986 Maritime Treaty between Honduras and Colombia 2 August 1986, p. 415 1987 Exchange of Notes of 6 February 1987, p. 521 1987 Exchanges of letters between the King of Saudi Arabia and the Amir of Qatar of 19 and 21 December 1987, p. 7, 10, 12 1987 Agreement of December 1987, p. 15 1987 Exchange of Letters of December 1987, p. 22 1888 Treaty between Costa Rica and Nicaragua of 22 March 1888, p. 535 1989 Convention on the Rights of Child of 20 November 1989, p. 384, 627 1989 Protocol between Hungary and Slovakia of 6 February 1989, p. 117 1989 Protocol between Hungarian and Slovak Plenipotentiaries of 8 and 9 June 1989, p. 117 1990 Exchange of Notes between the three Western Powers and the FR Germany of 27 and 28 September 1990, p. 444 1990 Treaty of the Final Settlement of 15 March 1991 between former Occupying Powers and the FR Germany and German Democratic Republic, p. 444 1990 “Minutes” signed at Doha by the Ministers of Foreign Affairs of Bahrain, Qatar and Saudi Arabia of 25 December 1990, p. 12 1990 Agreement of 25 December 1990, p. 15, 22 1992 Decree of Qatar of 16 April 1992, p. 23 1992 Agreement on the Principles of the Settlement of the Georgian-Ossetian Conflict of Georgia and the Russian Federation of 24 June 1992, p. 589 1992 Convention on Biodiversity Conservation and Protection of Priority Wild Areas in Central America, p. 535 1992 Lahore Declaration between India and Pakistan of 21 February 1999, p. 405 1992 Rio Convention on Biological Diversity, p. 117 1992 Tegucigalpa Protocol to the Charter of the OAS, p. 415



Indices

1992 United Nations Convention on Biological Diversity, p. 554 1993 Decree of Bahrain of 20 April 1993, p. 23 1993 Ceasefire Agreement of 27 July 1993, p. 590 1993 Special Agreement between Hungary and Slovakia of 7 April 1993, p. 117 1993 Treaty between Colombia and Jamaica, p. 415 1993 Special Agreement (Compromis) for Submission to the International Court of Justice of the Differences between the Republic of Hungary and the Slovak Republic concerning the GabcikovoNagymaros Project of 7 April 1993, p. 117 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessles on the High Seas, p. 168 1994 Agreement on the voluntary return of displaced persons between Georgia, Abkhazia, the Russian Federation and the UN of 4 April 1994, p. 590 1994 Convention on Judicial Assistance in Criminal Matters between Mexico and France of 27 January 1994, p. 568 1994 Convention on the Safety of United Nations and Associated Personnel of 9 December 1994, p. 96 1994 Joint Agreement between Benin and Niger of 8 April 1994, p. 462 1994 Moscow Agreement on a Ceasefire and Separation of Forces by Georgia, the Abkhaz separatist forces and the Russian Federation of 14 May 1994, p. 590 1994 Peace Treaty between Israel and Jordan of 26 October 1994, p. 627 1995 Agreement of 20 April 1995 constituted in the form of an Agreed Minute, an Exchange of Letters, an Exchange of Notes and the Annexes thereto between the European Community and Canada on fisheries in the context of the NAFO Convention, p. 168 1995 Communiquè between the Commander-in-Chief of the Nicaraguan Army and the Costa Rican Minister of Public Security Cuadra-Castro Joint Communiqué September 1995, p. 535 1995 Dayton Agreement—General Framework Agreement for Peace in Bosnia and Herzegovina of 14 December 1995, p. 96 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995, p. 627

1177

1995 Protocol of Agreement between Hungary and Slovakia of 14 November 1995, p. 117 1995 United Nations Agreement on Straddling Stocks of 1995, p. 168 1995 Agreement between Hungary and Slovakia concerning Certain Temporary Technical Measures and Discharges in the Danube and Mosoni branch of the Danube of 19 April 1995, p. 118 1995 General Framework Agreement for Peace in Bosnia and Herzegovina of 21 November 1995, p. 436 1995 General Framework Agreement for Peace in Bosnia and Herzegovina of 14 December 1995, p. 81 1996 Special Agreement between Botswana and Namibia of 15 February 1996, p. 179 1997 Additional Agreement constituted by an exchange of letters of 2 June 1997 between the Ministers for Foreign Affairs of Romania and Ukraine, p. 521 1997 Agreed Minutes between Hungary and Slovakia supplementing the Protocol of Agreement of 3 February 1997, p. 118 1997 Agreement between Turkey and Bulgaria on the determination of the boundary in the mouth area of the Rezovska/Mutludere River and delimitation of the maritime areas between the two States in the Black Sea of 4 December 1997, p. 521 1997 Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses, p. 118 1997 Espoo Convention—Convention on Environmental Impact Assessment in a Transboundary Context, p. 554 1997 International Convention on the Suppression of Terrorist Bombings of 15 December 1997, p. 96 1998 Statute of the International Criminal Court (ICC Statute), p. 417 1998 Central America-Dominican Republic Free Trade Agreement of 16 April 1998 between Nicaragua, Honduras, Costa Rica, Guatemala, El Salvador and the Dominican Republic, p. 415 1998 Communiquè between the Nicaraguan Minister of Defence and the Costa Rican Minister of Public Security (Cuadra-Lizano Joint Communiqué) of 30 July 1998, p. 535 1998 Protocol 1 to Convention for the Protection of Human Rights and Fundamental Freedom of the Council of Europe, p. 444

1178

Indices

1998 Protocol between DR Congo and Uganda on Security along the Common Border of 27 April 1998, p. 384 1998 Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, p. 218 1998 Special Agreement between IndonesiaMalaysia of 14 May 1998, p. 198 1999 African Charter on the Rights and Welfare of the Child, p. 384 1999 Agreement between Niger and Benin of 14 January 1999, p. 463 Military Technical Agreement of 9 June 1999, p. 638 1999 Lusaka Agreement of 10 July 1999, p. 370, 372, 384 2000 Kampala Disengagement Agreement of 8 April 2000, p. 370 2000 Constitutive Act of the African Union of 11 July 2000, p. 463 2000 Harare Plan of 6 December 2000, p. 384 2000 Kampala Plan of 8 April 2000, p. 384 2000 Optional Protocol to the Convention on the Rights of the Child of 25 May 2000, p. 384 2000 Treaty between Cameroon and Equatorial Guinea of 23 September 2000, p. 153 2001 Stockholm Convention on Persistent Organic Pollutants, p. 554 2002 Luanda Agreement between the DR Congo and Uganda on Withdrawal of Ugandan Troops from the DR Congo, Co-Operation and Normalisation of Relations of 6 September 2002, p. 385 2002 Special Agreement of 11 April 2002, p. 462 2002 Statute of the Special Court for Sierra Leone, p. 424, 430

2002 Tovar-Caldera Agreement between Costa Rica and Nicaragua of 26 September 2002, p. 535 2003 Rome Statute of the International Criminal Court, p. 96, 384, 424, 429, 476, 484 2003 Special Agreement between Malaysia and Singapore, p. 508 2003 Treaty between Ukraine and Romania on the Regime of the UkrainianRomanian State Border, p. 521 2004 “Understanding” between Ministers for Foreign Affairs of Argentina and Uruguay of 2 March 2004, p. 554 2004 Verbal agreement between Argentina and Uruguay Foreign Ministers of 2 March 2004, p. 545 2005 Optional Protocol to the Vienna Convention on Consular Relations on 7 March 2005, p. 495, 578 2005 Agreement between Argentina and Uruguay (Grupo Técnico de Alto Nivel—GTAN), p. 554 2008 Medvedev-Sarkozy Political Agreement between the Russian Federation and France of 12 August 2008, p. 590 Article 18 of the Covenant of League of Nations, p. 452 League of Nations Covenant, p. 152 Pact of the League of Arab States, p. 12 Rambouillet accords (S/1999/648), p. 638 Special Agreement between US, UK and Portugal, p. 210 Treaties of Friendship, Commerce or Economic Relations concluded by the USA with China, Ethiopia, Iran, Oman, Muscat, p. 52 Treaty of Asunción, p. 547 US- Nicaragua Treaty, p. 567