World Court Digest 2001 - 2005

Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht

Max Planck Institute for Comparative Public Law and International Law Under the Direction of Armin von Bogdandy • Rüdiger Wolfrum

WORLD COURT DIGEST Formerly Fontes Iuris Gentium Volume 4 2001–2005 Prepared by

Petra Minnerop • Karin Oellers-Frahm Frank Schorkopf • Christian Walter Annette Weerth

To be cited as: Max-Planck-Institute for International Law, World Court Digest

ISBN 978-3-540-87466-9

Springer-Verlag Berlin – Heidelberg – New York

e-ISBN 978-3-540-87467-6

DOI 10.1007/ 978-3-540-87467-6

Die Deutsche Bibliothek – CIP-Einheitsaufnahme World Court Digest /Hrsg.: Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht. – Vol. 1. 1986/90 (1992) – . – Berlin; Heidelberg; New York; London; Paris; Tokyo; Hong Kong; Barcelona; Budapest: Springer, 1992 Früher u. d T. : Digest of the decisions of the International Court of Justice This work is subject to copyright. All rights are reserved, whether the whole or part of the materials is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer-Verlag. Violations are liable for prosecution under the German Copyright Law. © by Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2009 Printed in Germany Typesetting: Camera ready from the author Printed on acid-free paper 987654321 springer.de

In memoriam

Carl-August Fleischhauer 1930-2005

Preface The first three volumes of the World Court Digest cover the periods 1986 to 1990, 1991 to 1995 and 1996 to 2000. We are happy to issue the fourth volume, covering the period from 2001 to 2005. We hope that this new Digest will be welcome to all those interested in the case law of the International Court of Justice.

We are, of course, aware that nowadays the decisions of the Court are easily accessible through electronic data systems. However, there is no systematic analysis available in the form presented by the World Court Digest. Therefore, the Digest will be useful for those who wish to find the most recent position of the Court on a particular issue of international law. As the three previous volumes, also this fourth volume will be made available through electronic data on the homepage of the Max Planck Institute for Comparative Public Law and International Law.

The first five years of the new century have been a busy period for the Court due to its continuing heavy caseload. The cases concerned a variety of legal issues reaching from the use of force and self-defence to questions of land and maritime boundary delimitation, immunity, consular matters, revision of judgments and the effect of provisional measures. The parties to the cases were States from all parts of the world demonstrating the general acceptance of the Court.

The Digest has been prepared by a working group at the Max Planck Institute composed of Petra Minnerop, Karin Oellers-Frahm, Frank Schorkopf, Christian Walter and Annette Weerth.

The present volume will be devoted to the remembrance of Carl-August Fleischhauer, former Judge at the International Court of Justice.

Rüdiger Wolfrum

Armin von Bogdandy

Directors of the Institute

TABLE OF CONTENTS I. Substantive International Law - First Part 1. THE FOUNDATIONS OF INTERNATIONAL LAW ................................................

9

1.1. Good Faith ..................................................................................................... 1.2. Equity ....................................................................................................... 1.3. Estoppel and Acquiescence

9 9

*

2. SOURCES OF INTERNATIONAL LAW ................................................................... 10 *

2.1. General Questions * 2.1.1. Formation of Rules of International Law * 2.1.2. Historic Rights * 2.1.3. Rules of International Law of Regional and Local Application 2.1.4. Ius cogens / obligations erga omnes ............................................... 2.1.5. Relation between the Sources of International Law 2.2. Customary International Law......................................................................... 2.2.1. Formation of Customary International Law.................................... * 2.2.2. Evidence of Customary International Law * 2.3. Treaties 2.4. General Principles of Law ............................................................................. 2.5. Unilateral Acts ............................................................................................... * 3. INTERNATIONAL LAW AND MUNICIPAL LAW 4. SUBJECTS OF INTERNATIONAL LAW.................................................................. 4.1. General Questions.......................................................................................... 4.2. States ....................................................................................................... 4.2.1. Jurisdiction of States....................................................................... * 4.2.2. Territory * 4.2.3. Nationality 4.2.4. Organs ............................................................................................. 4.2.5. Fundamental Rights and Obligations .............................................. 4.2.5.1. Sovereignty....................................................................... * 4.2.5.2. Equality * 4.2.5.3. Peaceful Settlement of Disputes * 4.2.5.4. Obligations of Cooperation and Negotiation 4.2.6. Succession of States ........................................................................ 4.2.7. Immunity of States .......................................................................... * 4.3. International Organisations * 4.3.1. General Questions * 4.3.2. Legal Position of Member States * 4.3.3. Internal Law * 4.3.4. "Implied Powers" * 4.4. Other Subjects of International Law 4.5. Individuals ..................................................................................................... 5. THE UNITED NATIONS ............................................................................................

* * *

*

5.1. 5.2. 5.3. 5.4. 5.5. 5.6. 5.7.

General Questions......................................................................................... General Assembly......................................................................................... Security Council Secretary-General Other Organs Relationship between different Organs......................................................... Interpretation of the Charter .........................................................................

Indicates sections without case excerpts

10 15 16 20 21

22 22 23 23 28 31 31

31 32

59 63 63 64

66 73

2

Table of Contents

* * * *

5.8. Maintenance of International Peace and Security......................................... 74 5.9. Trusteeship System ....................................................................................... 75 5.10. Specialized Agencies 5.11. United Nations Administrative Tribunal 5.12. Regional Arrangements 5.13. Privileges and Immunities 5.14. Membership ................................................................................................. 76

6. USE OF FORCE AND RELATED PROBLEMS........................................................ 83 6.1. Use of Force................................................................................................... 83 6.2. Self-defence ................................................................................................... 101 6.3. Intervention.................................................................................................... 129 7. LAW OF TREATIES ................................................................................................... 131

* *

7.1. General Questions.......................................................................................... 7.2. Treatymaking Capacity.................................................................................. 7.3. Conclusion 7.4. Reservations................................................................................................... 7.5. Application 7.6. Invalidity ....................................................................................................... 7.7. Suspension and Termination.......................................................................... 7.8. Interpretation.................................................................................................. 7.9. Specific Treaties ............................................................................................ * 7.9.1. Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities of 1919 * 7.9.2. Convention on the Prevention and Punishment of the Crime of Genocide of 1948 * 7.9.3. Treaty of Friendship and Good Neighbourliness between the French Republic and the United Kingdom of Libya of 1955 * 7.9.4. Convention on the Continental Shelf of 1958 * 7.9.5. Doha Minutes 7.9.6. Treaty of Amity Economic Relations and Consular Rights between the United States of America and Iran of 1955............... * 7.9.7. Convention on Privileges and Immunities of the United Nations of 1946 7.9.8. Vienna Convention on Consular Relations.................................... 7.9.9. Boundary Convention between Netherlands and Great Britain..... 7.9.10. Fourth Geneva Convention on the Protection of Civilian Persons in Time of War of 1949 ................................................... 7.9.11. International Covenant on Civil and Political Rights of 1966...... 7.9.12. International Covenant on Economic, Social and Cultural Rights of 1966 ...............................................................................

131 132 133 136 145 145 158

158 167 189 194 201 203

8. VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES ....................................................................... 204 * * *

*

8.1. General Questions.......................................................................................... 8.2. Violation of International Law 8.3. Treaty Violations ........................................................................................... 8.4. Imputability.................................................................................................... 8.5. Fault and due Diligence 8.6. Participation 8.7. Violation of Duty to Prevent Damage ........................................................... 8.8. Circumstances Precluding Wrongfulness ...................................................... 8.9. Consequences of an Internationally Wrongful Act........................................

Indicates sections without case excerpts

204 206 211 219 221 224

Table of Contents

3

II. Substantive International Law - Second Part 1. TERRITORY OF STATES .......................................................................................... 254 1.1. Acquisition and Loss ..................................................................................... 1.1.1. General Questions........................................................................... 1.1.2. Legal or Historic Title..................................................................... 1.1.3. Effectivités ...................................................................................... 1.2. Boundaries ..................................................................................................... 1.2.1. Land Boundaries ............................................................................. 1.2.2. Maritime Boundaries ...................................................................... * 1.2.3. Air and Space 1.2.4. Principle of "uti possidetis" ............................................................ 2. LAW OF THE SEA...................................................................................................... * 2.1. General Questions 2.2. Determination of Maritime Boundaries ......................................................... * 2.3. Internal Waters * 2.4. Maritime Zones 2.5. Freedom of Navigation .................................................................................. * 2.6. Fisheries 2.7. Islands / Low-tide elevations ......................................................................... * 3. INTERNATIONAL WATERCOURSES

254 254 260 275 298 298 302 305 319 319 356 257

* 4. AIR AND SPACE LAW 5. SELF-DETERMINATION........................................................................................... 368 6. NATIONALITY ....................................................................................................... 373 * 6.1. General Questions * 6.2. Acquisition and Loss 6.3. Diplomatic Protection.................................................................................... 373 * 7. MINORITIES * 8. LAW OF ALIENS ....................................................................................................... * 8.1. General Questions 8.2. Protection of Property.................................................................................... 9. HUMAN RIGHTS ....................................................................................................... 10. LAW OF ARMED CONFLICTS / INTERNATIONAL HUMANITARIAN LAW............................................................................................ 11. DISPUTE SETTLEMENT ......................................................................................... * 11.1. General Questions 11.2. Judicial and Arbitral Decisions.................................................................... 12. DIPLOMACY AND CONSULAR MATTERS......................................................... 13. INTERNATIONAL ECONOMIC LAW.................................................................... 13.1. General Questions........................................................................................ * 13.2. Multilateral Instruments 13.3. Bilateral Treaties of Friendship and Commerce .......................................... * 14. INTERNATIONAL ENVIRONMENTAL LAW * 15. EXTRADITION

391 391 391 412 453 453 461 473 473 474

16. INTERNATIONAL CRIMINAL LAW ..................................................................... 490 * 16.1. General Questions *

Indicates sections without case excerpts

4

Table of Contents 16.2. Universal Jurisdiction .................................................................................. 490 17. DEPENDENT TERRITORIES .................................................................................. 505

III. The International Court of Justice 1. FUNDAMENTAL PRINCIPLES................................................................................. 519

* * *

1.1. General Questions.......................................................................................... 1.2. Consent of States ........................................................................................... 1.3. Equality of Parties 1.4. Political Questions/Determination of the Existence of a Dispute.................. 1.5. Ius standi ....................................................................................................... 1.6. Applicable Law 1.7. Jura novit curia 1.8. Principle of Clean Hands ............................................................................... 1.9. Composition of the Court ..............................................................................

519 534 539 545 557 560

2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE ............. 567 2.1. General Rules................................................................................................. 2.2. Conditions for a Decision on the Merits ........................................................ 2.2.1. Exhaustion of Local Remedies ....................................................... 2.2.2. Necessity of Diplomatic Negotiations ............................................ * 2.2.3. Jurisdiction in Case of Continuing Negotiations between the Parties 2.2.4. Admissibility ................................................................................... * 2.2.5. Simultaneous seizing of the Court and the Security Council/ Review of Security Council resolutions 2.2.6. Mootness ......................................................................................... * 2.3. The Optional Clause * 2.3.1. General Questions * 2.3.2. Transfer of Acceptances of the Compulsory Jurisdiction of the Permanent Court of International Justice (Article 36, Paragraph 5, of the Statute of the International Court of Justice) * 2.3.3. Reservations * 2.3.4. Interpretation of a Declaration made under Article 36, Paragraph 2, of the Statute * 2.3.5. Reciprocity 2.4. Jurisdiction on the Basis of a Special Agreement......................................... 2.5. Jurisdiction on the Basis of Treaties ............................................................. 2.5.1. General Questions........................................................................... * 2.5.2. Transfer of Competences of the Permanent Court of International Justice (Article 37 of the Statute of the International Court of Justice) 2.5.3. Specific Treaties/Scope of Jurisdiction........................................... 2.6. Agreement in Regard to Jurisdiction in the Course of the Proceedings ................................................................................................. * 2.7. Jurisdiction on the basis of a previous judgment 2.8. Jurisdiction and Third States........................................................................ * 2.9. Review of Arbitral Awards 2.10. Concurring Jurisdictions.............................................................................. 2.11. Dismissal in limine litis ............................................................................... 3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE................. 3.1. General Questions........................................................................................ *

Indicates sections without case excerpts

567 578 578 591 593 603

604 606 606

607 649 650 655 657 667 667

Table of Contents *

* *

* *

3.2. Procedure before a Chamber Dealing with a Particular Case (Article 26, Paragraph 2, of the Statute) 3.3. Judges ad hoc ............................................................................................... 3.4. The Submissions / Scope of the Dispute ..................................................... 3.5. Preliminary Objections ................................................................................ 3.6. The Procedure in Default of Appearance 3.7. Evidence....................................................................................................... 3.8. Duty of the Court to Seek Further Clarification 3.9. Relevant Facts.............................................................................................. 3.10. Provisional Measures ................................................................................... 3.10.1. General Questions ......................................................................... 3.10.2. Prerequisites and questions of Procedure...................................... 3.10.3. Provisional Measures and Jurisdiction.......................................... 3.10.4. Binding Effect / Compliance ........................................................ 3.10.5. Provisional Measures and Merits .................................................. 3.11. Intervention .................................................................................................. 3.11.1. General Questions (Article 62 and 63 of the Statute) ................... 3.11.2. Article 62, Prerequisites in General .............................................. 3.11.3. Article 62, Jurisdictional Link ...................................................... * 3.11.4. Procedural Rights of the Intervening State * 3.11.5. Article 63

668 674 682 686 704 704 704 708 716 722 735 737 737 738 753

3.12. Counter-Claim ............................................................................................. 756 3.13. Joinder 3.14. Withdrawal of Suit....................................................................................... 773 3.15. Question of Costs

4. JUDGMENTS OF THE INTERNATIONAL COURT OF JUSTICE ......................... 4.1. General Questions.......................................................................................... 4.2. Effects of Judgments...................................................................................... * 4.3. Interpretation of Decisions 4.4. Revision of Judgments................................................................................... 4.5. Separate Opinions ......................................................................................... 4.6. Compliance .................................................................................................... 5. ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE .................................................................................................. 5.1. General Questions.......................................................................................... 5.2. Request for Advisory Opinion....................................................................... 5.3. Jurisdictional Questions and Denial of the Request for Advisory Opinion .......................................................................................... 5.4. Procedure ....................................................................................................... * 5.5. Review of Decisions of the United Nations Administrative Tribunal

*

5

Indicates sections without case excerpts

774 774 787 799 825 826 828 828 829 834 851

6

Table of Contents

Summaries of the Decisions Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001 LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) Judgment of 14 February 2002 Case Concerning 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 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002 Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) - Application of the Philippines for Permission to Intervene, Judgment of 23 October 2001 - Judgment on the Merits of 17 December 2002 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 Herzegovia v. Yugoslavia), Preliminary Objections Judgment of 3 February 2003 Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Provisional Measures, Order of 17 June 2003 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003 Application for the Revision of the Judgment of 11 September 1992 in the case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El Salvador v. Honduras) Judgment of 18 December 2003 Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) - Provisional Measures, Order of 5 February 2003 - Judgment on the merits of 31 March 2004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 9 July 2004 Case Concerning Legality of Use of Force (Serbia and Montenegro v. Belgium; Serbia and Montenegro v. Canada; Serbia and Montenegro v. France; Serbia and Montenegro v. *

Indicates sections without case excerpts

Table of Contents

7

Germany; Serbia and Montenegro v. Italy; Serbia and Montenegro v. Netherlands; Serbia and Montenegro v. Portugal; Serbia and Montenegro v. United Kingdom) Judgment of 15 December 2004 Case Concerning Certain Property (Liechtenstein v. Germany) Judgment of 10 February 2005 Case Concerning the Frontier Dispute (Benin/Niger) Judgment of 12 July 2005 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) - Counter-Claims, Order of 29 November 2001 - Judgment on the Merits of 19 December 2005 The Judges of the International Court of Justice 2001-2005 Judges ad hoc General Index

*

Indicates sections without case excerpts

ABBREVIATIONS

A.O.

=

Advisory Opinion

Decl.

=

Declaration

D.O.

=

Dissenting Opinion

J.

=

Judgment

J.Decl.

=

Joint Declaration

J.D.O.

=

Joint Dissenting Opinion

J.S.O.

=

Joint Separate Opinion

O.

=

Order

S.O.

=

Separate Opinion

I. Substantive International Law – First Part 1. THE FOUNDATIONS OF INTERNATIONAL LAW 1.1. Good Faith

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 488] 60. 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.

1.2. Equity

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 443] 294. The Court is bound to stress in this connection that delimiting with a concern to achieving an equitable result, as required by current international law, is not the same as delimiting in 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.

*

1.3. Estoppel and Acquiescence

10

Sources of International Law 2. SOURCES OF INTERNATIONAL LAW *

2.1. General Questions

*

2.1.1. Formation of Rules of International Law

*

2.1.2. Historic Rights

*

2.1.3. Rules of International Law of Regional and Local Application

2.1.4. Ius cogens / obligations erga omnes

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, p. 136

[pp. 199-200] 55. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. 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, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self–determination, and certain of its obligations under international humanitarian law.

156. 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). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88), "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

Sources of International Law

11

United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle ..."

157. 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 ‘elementary 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 1996 (I), p. 257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character.

158. The Court would also emphasize that Article 1 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 under an obligation to ensure that the requirements of the instruments in question are complied with.

159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations 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. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an

12

Sources of International Law

obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

160. Finally, the Court is of the view that 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 régime, taking due account of the present Advisory Opinion. [pp. 231-232 S.O. Kooijmans] 39. Although the Court beyond any doubt is entitled to do so,

the request itself does not necessitate (not even by implication) the determination of the legal consequences for other States, even if a great number of participants urged the Court to do so (para. 146). In this respect the situation is completely different from that in the Namibia case where the question was exclusively focussed on the legal consequences for States, and logically so since the subject-matter of the request was a decision by the Security Council. In the present case there must therefore be a special reason for determining the legal consequences for other States since the clear analogy in wording with the request in the Namibia case is insufficient.

40. That reason as indicated in paragraphs 155 to 158 of the Opinion is that the obligations violated by Israel include certain obligations erga omnes. I must admit that I have considerable difficulty in understanding why a violation of an obligation erga omnes by one State should necessarily lead to an obligation for third States. The nearest I can come to such an explanation is the text of Article 41 of the International Law Commission’s Articles on State Responsibility. That Article reads: "1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40. (Article 40 deals with serious breaches of obligations arising under a peremptory norm of general international law.) 2. No State shall recognise as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation." Paragraph 3 of Article 41 is a saving clause and of no relevance for the present case.

Sources of International Law

13

41. I will not deal with the tricky question whether obligations erga omnes can be equated with obligations arising under a peremptory norm of general international law. In this respect I refer to the useful commentary of the ILC under the heading of Chapter III of its Articles. For argument’s sake I start from the assumption that the consequences of the violation of such obligations are identical.

42. Paragraph 1 of Article 41 explicitly refers to a duty to co-operate. As paragraph 3 of the commentary states "What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches." And paragraph 2 refers to "co-operation ... in the framework of a competent international organization, in particular the United Nations". Article 41, paragraph 1, therefore does not refer to individual obligations of third States as a result of a serious breach. What is said there is encompassed in the Court’s finding in operative subparagraph (3) (E) and not in subparagraph (3) (D).

43. Article 41, paragraph 2, however, explicitly mentions the duty not to recognize as lawful a situation created by a serious breach just as operative subparagraph (3) (D) does. In its commentary the ILC refers to unlawful situations which - virtually without exception - take the form of a legal claim, usually to territory. It gives as examples "an attempted acquisition of sovereignty over territory through denial of the right of self-determination", the annexation of Manchuria by Japan and of Kuwait by Iraq, South-Africa’s claim to Namibia, the Unilateral Declaration of Independence in Rhodesia and the creation of Bantustans in South Africa. In other words, all examples mentioned refer to situations arising from formal or quasi-formal promulgations intended to have an erga omnes effect. I have no problem with accepting a duty of non-recognition in such cases.

44. I have great difficulty, however, in understanding what the duty not to recognize an illegal fact

involves.

What

are

the

individual

addressees

of

this

part

of

operative

subparagraph (3) (D) supposed to do in order to comply with this obligation? That question is even more cogent considering that 144 States unequivocally have condemned the construction of the wall as unlawful (res. ES-10/13), whereas those States which abstained or voted against (with the exception of Israel) did not do so because they considered the construction of the wall as legal. The duty not to recognize amounts, therefore, in my view to an obligation without real substance.

14

Sources of International Law

45. That argument does not apply to the second obligation mentioned in Article 41, paragraph 2, namely the obligation not to render aid or assistance in maintaining the situation created by the serious breach. I therefore fully support that part of operative subparagraph (3) (D). Moreover, I would have been in favour of adding in the reasoning or even in the operative part a sentence reminding States of the importance of rendering humanitarian assistance to the victims of the construction of the wall. (The Court included a similar sentence, be it with a different scope, in its Opinion in the Namibia case, I.C.J. Reports 1971, p. 56, para. 125.)

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005 [pp. 349-350 S.O. Simma] 38. Let me conclude with a more general observation on the community interest underlying international humanitarian and human rights law. I feel compelled to do so because of the notable hesitation and weakness with which such community interest is currently manifesting itself vis-à-vis the ongoing attempts to dismantle important elements of these branches of international law in the proclaimed "war" on international terrorism.

39. As against such undue restraint it is to be remembered that at least the core of the obligations deriving from the rules of international humanitarian and human rights law are valid erga omnes. According to the Commentary of the ICRC to Article 4 of the Fourth Geneva Convention, "[t]he spirit which inspires the Geneva Conventions naturally makes it desirable that they should be applicable ‘erga omnes’, since they may be regarded as the codification of accepted principles"1. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons the Court stated that "a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary 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 1996 (I), p. 257,

Sources of International Law

15

para. 79). Similarly, in the Wall Advisory Opinion, the Court affirmed that the rules of international humanitarian law "incorporate obligations which are essentially of an erga omnes character" (I.C.J. Reports 2004, p. 199, para. 157).

40. As the Court indicated in the Barcelona Traction case, obligations erga omnes are by their very nature "the concern of all States" and, "[i]n 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, p. 32, para. 33). In the same vein, the International Law Commission has stated in the Commentaries to its Articles on the Responsibility of States for Internationally Wrongful Acts, that there are certain rights in the protection of which, by reason of their importance, "all States have a legal interest ..." (A/56/10 at p. 278)2.

41. If the international community allowed such interest to erode in the face not only of violations of obligations erga omnes but of outright attempts to do away with these fundamental duties, and in their place to open black holes in the law in which human beings may be disappeared and deprived of any legal protection whatsoever for indefinite periods of time, then international law, for me, would become much less worthwhile.

*

2.1.5. Relation between the Sources of International Law

2.2. Customary International Law

1

Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, J.S. Pictet (ed.), 1985,, p. 48.

2

Concerning the specific question of standing in case of breaches of obligations erga omnes the Institute of International Law, in a resolution on the topic of obligations of this nature adopted at its Krakow Session of 2005, accepted the following provisions: "Article 3 In the event of there being a jurisdictional link between a State alleged to have committed a breach of an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to bring a claim to the International Court of Justice or other international judicial institution in relation to a dispute concerning compliance with that obligation. Article 4 The International Court of Justice or other international judicial institution should give a State to which an obligation erga omnes is owed the possibility to participate in proceedings pending before the Court or that institution and relating to that obligation. Specific rules should govern this participation.”

16

Sources of International Law 2.2.1. Formation of Customary International Law

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[p. 21-22] 53. In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative

in

international

negotiations

and

intergovernmental

meetings.

Ambassadors and other diplomatic agents carry out their duties under his or her authority. His or her acts may bind the State represented, and there is a presumption that a Minister for Foreign Affairs, simply by virtue of that office, has full powers to act on behalf of the State (see, e.g., Art. 7, para. 2 (a), of the 1969 Vienna Convention on the Law of Treaties). In the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. He or she must also be in constant communication with the Government, and with its diplomatic missions around the world, and be capable at any time of communicating with representatives of other States. The Court further observes that a Minister for Foreign Affairs, responsible for the conduct of his or her State’s relations with all other States, occupies a position such that, like the Head of State or the Head of Government, he or she is recognized under international law as representative of the State solely by virtue of his or her office. He or she does not have to present letters of credence: to the contrary, it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence. Finally, it is to the Minister for Foreign Affairs that chargés d’affaires are accredited.

Sources of International Law

17

54. The Court accordingly concludes that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.

[pp. 144-145 D.O. Van den Wyngaert] 13. In the present case, there is no settled practice (usus) about the postulated "full" immunity of Foreign Ministers to which the International Court of Justice refers in paragraph 54 of its present Judgment. There may be limited State practice about immunities for current3 or former Heads of State4 in national courts, but there is no such practice about Foreign Ministers. On the contrary, the practice rather seems to be that there are hardly any examples of Foreign Ministers being granted immunity in foreign jurisdictions5. Why this is so is a matter of speculation. The question, however, is what to infer from this "negative practice". Is this the expression of an opinio juris to the effect that international law prohibits criminal proceedings or, concomitantly, that Belgium is under an international obligation to refrain from instituting such proceedings against an incumbent Foreign Minister? A "negative practice" of States, consisting in their abstaining from instituting criminal proceedings, cannot, in itself, be seen as evidence of an opinio juris. Abstinence may be explained by many other reasons, including courtesy, political considerations, practical

3

Cour de Cassation (Fr.), 13 Mar. 2001 (Qaddafi).

4

R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte, 25 Nov. 1998, [1998] 4 All ER 897.

5

Only one case has been brought to the attention of the Court: Chong Boon Kim v. Kim Yong Shik and David Kim, Circuit Court (First Circuit, State of Hawaii), 9 Sep. 1963, 58 AJIL 1964, pp. 186–187. This case was about an incumbent Foreign Minister against whom process was served while he was on an official visit in the United States (see para. 1 of the “Suggestion of Interest Submitted on behalf of the United States”, ibid.). Another case where immunity was recognised, not of a Minister but of a prince, was in the case of Kilroy v. Windsor (Prince Charles, Prince of Wales), US District Court for the N.D. of Ohio, 7 Dec. 1978, International Law Reports, Vol. 81, 1990, pp. 605–607. In that case, the judge observes: “The Attorney–General ... has determined that the Prince of Wales is immune from suit in this matter and has filed a ‘suggestion of immunity’ with the Court ... [T]he doctrine, being based on foreign policy considerations and the Executive’s desire to maintain amiable relations with foreign States, applies with even more force to live persons representing a foreign nation on an official visit.” (Emphasis added.)

18

Sources of International Law

concerns and lack of extraterritorial criminal jurisdiction6. Only if this abstention was based on a conscious decision of the States in question can this practice generate customary international law.

[pp. 154-156 D.O. Van den Wyngaert] 27. ... In legal doctrine, there is a plethora of recent scholarly writings on the subject. Major scholarly organizations, including the International Law Association7 and the Institut de droit international have adopted resolutions8 and newly established think tanks, such as the drafters of the "Princeton principles"9 and of the "Cairo principles"10 have made statements on the issue. Advocacy organizations, such as Amnesty International11, Avocats sans Frontières12, Human Rights Watch, The International

6

In some States, for example, the United States, victims of extraterritorial human rights abuses can bring civil actions before the Courts. See, for example, the Karadzic case (Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995)). There are many examples of civil suits against incumbent or former Heads of State, which often arose from criminal offences. Prominent examples are the Aristeguieta case (Jimenez v. Aristeguieta, ILR 1962, p. 353), the Aristide case (Lafontant v. Aristide, 844 F. Supp. 128 (EDNY 1994), noted in 88 AJIL 1994, pp. 528– 532), the Marcos cases (Estate of Silme G. Domingo v. Ferdinand Marcos, No. C82–1055V, AJIL 1983, p. 305: Republic of the Philippines v. Marcos and Others (1986), ILR 81, p. 581 and Republic of the Philippines v. Marcos and others, 1987, 1988, ILR 81, pp. 609 and 642) and the Duvalier case (Jean–Juste v. Duvalier, No. 86–0459 Civ (US District Court, SD Fla.), 82 AJIL 1988, p. 596), all mentioned and discussed by Watts (A. Watts, “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers”, Recueil des Cours de l’Académie de droit international, 1994, III, pp. 54 et seq.). See also the American 1996 Antiterrorism and Effective Death Penalty Act which amended the Foreign Sovereign Immunities Act (FSIA), including a new exception to State immunity in case of torture for civil claims. See J. F. Murphy, “Civil liability for the Commission of International Crimes as an Alternative to Criminal Prosecution”, 12 Harvard Human Rights Journal, 1999, pp. 1–56.

7

International Law Association (Committee on International Human Rights Law and Practice), Final Report on the Exercise of Universal Jurisdiction in respect of Gross Human Rights Offences, 2000.

8

See also the Institut de droit international’s Resolution of Santiago de Compostela, 13 Sep. 1989, commented by G. Sperduti, “Protection of human rights and the principle of non– intervention in the domestic concerns of States. Rapport provisoire”, Yearbook of the Institute of International Law, Session of Santiago de Compostela, 1989, Vol. 63, Part I, pp. 309–351.

9

Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction, 23 July 2001, with a foreword by Mary Robinson, United Nations High Commissioner for Human Rights, http://www.princeton.edu/~lapa/unive_jur.pdf. See M. C. Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, Virginia Journal of International Law, 2001, Vol. 42, pp. 1–100. Sep. 2001, AI Index IOR 53/2001.

10

Africa Legal Aid (AFLA), Preliminary Draft of the Cairo Guiding Principles on Universal Jurisdiction in Respect of Gross Human Rights Offenses: An African Perspective, Cairo, 31 July 2001, http://www.afla.unimaas.nl/ en/act/univjurisd/preliminaryprinciples.htm.

11

Amnesty International, Universal Jurisdiction. The Duty of States to Enact and Implement Legislation, Sep. 2001, AI Index IOR 53/2001.

Sources of International Law

19

Federation of Human Rights Leagues (FIDH) and the International Commission of Jurists13, have taken clear positions on the subject of international accountability14. This may be seen as the opinion of civil society, an opinion that cannot be completely discounted in formation of customary international law today. In several cases, civil society organizations have set in motion a process that ripened into international conventions15. Well–known examples are the 1968 Convention on the Non–Applicability of Statutory Limitations to War Crimes and Crimes against Humanity16, which can be traced back to efforts of the International Association of Penal law, the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, probably triggered by Amnesty International’s Campaign against Torture, the 1997 Treaty banning Landmines17 , to which the International Campaign to Ban Landmines gave a considerable impetus18 and the 1998 Statute for the International Criminal Court, which was promoted by a coalition of non–governmental organizations.

28. The Court fails to acknowledge this development, and does not discuss the relevant sources. Instead, it adopts a formalistic reasoning, examining whether there is, under customary international law, an international crimes exception to the – wrongly postulated – rule of immunity for incumbent Ministers under customary international law (Judgment, 12

Avocats sans frontières, “Débat sur la loi relative à la répression des violations graves de droit international humanitaire”, discussion paper of 14 Oct. 2001, available on http://www.asf.be.

13

K. Roth, “The Case For Universal Jurisdiction”, Foreign Affairs, Sep./Oct. 2001, responding to an article written by an ex–Minister of Foreign Affairs in the same review (Henry Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/Aug. 2001).

14

See the joint Press Report of Human Rights Watch, the International Federation of Human Rights Leagues and the International Commission of Jurists, “Rights Group Supports Belgium’s Universal Jurisdiction Law”, 16 Nov. 2000, available at http://www.hrw.org/press/2000/11/world–court.htm or http://www.icj.org/press/press01/ english/belgium11.htm. See also the efforts of the International Committee of the Red Cross in promoting the adoption of international instruments on international humanitarian law and its support of national implementation efforts (http://www.icrc.org/eng/ advisory_service_ihl; http://www.icrc.org/eng/ihl).

15

M. C. Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, Virginia Journal of International Law, 2001, Vol. 42, p. 92.

16

Convention on the Non–Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 Nov. 1968, ILM 1969, p. 68.

17

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti– personnel Mines and on their Destruction, Oslo, 18 Sep. 1997, ILM 1997, p. 1507.

18

The International Campaign to Ban Landmines (ICBL) is a coalition of non–governmental organisations, with Handicap International, Human Rights Watch, Medico International,

20

Sources of International Law

para. 58). By adopting this approach, the Court implicitly establishes a hierarchy between the rules on immunity (protecting incumbent former Ministers) and the rules on international accountability (calling for the investigation of charges against incumbent Foreign Ministers charged with war crimes and crimes against humanity).

*

2.2.2. Evidence of Customary International Law

*

2.3. Treaties

2.4. General Principles of Law

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 503] 103. 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 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). 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

Mines Advisory Group, Physicians for Human Rights, and Vietnam Veterans of America Foundation as founding members.

Sources of International Law

21

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 between 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)).

2.5. Unilateral Acts

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 266] 293. 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). Similarly, the International Law Commission, in its commentary on Article 45 of the Draft Articles on Responsibility of States for internationally wrongful acts, points out that "[a]lthough it may be possible to infer a waiver from the conduct of the States concerned or from a unilateral statement, the conduct or statement must be unequivocal" (ILC report, doc. A/56/10, 2001, p. 308). In the Court’s view, nothing in the conduct of Uganda in the period after May 1997 can be considered as implying an unequivocal waiver of its right to bring a counter-claim relating to events which occurred during the Mobutu régime.

10

Sources of International Law 2. SOURCES OF INTERNATIONAL LAW *

2.1. General Questions

*

2.1.1. Formation of Rules of International Law

*

2.1.2. Historic Rights

*

2.1.3. Rules of International Law of Regional and Local Application

2.1.4. Ius cogens / obligations erga omnes

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, p. 136

[pp. 199-200] 55. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. 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, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self–determination, and certain of its obligations under international humanitarian law.

156. 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). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88), "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

Sources of International Law

11

United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle ..."

157. 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 ‘elementary 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 1996 (I), p. 257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character.

158. The Court would also emphasize that Article 1 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 under an obligation to ensure that the requirements of the instruments in question are complied with.

159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations 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. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an

12

Sources of International Law

obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

160. Finally, the Court is of the view that 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 régime, taking due account of the present Advisory Opinion. [pp. 231-232 S.O. Kooijmans] 39. Although the Court beyond any doubt is entitled to do so,

the request itself does not necessitate (not even by implication) the determination of the legal consequences for other States, even if a great number of participants urged the Court to do so (para. 146). In this respect the situation is completely different from that in the Namibia case where the question was exclusively focussed on the legal consequences for States, and logically so since the subject-matter of the request was a decision by the Security Council. In the present case there must therefore be a special reason for determining the legal consequences for other States since the clear analogy in wording with the request in the Namibia case is insufficient.

40. That reason as indicated in paragraphs 155 to 158 of the Opinion is that the obligations violated by Israel include certain obligations erga omnes. I must admit that I have considerable difficulty in understanding why a violation of an obligation erga omnes by one State should necessarily lead to an obligation for third States. The nearest I can come to such an explanation is the text of Article 41 of the International Law Commission’s Articles on State Responsibility. That Article reads: "1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40. (Article 40 deals with serious breaches of obligations arising under a peremptory norm of general international law.) 2. No State shall recognise as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation." Paragraph 3 of Article 41 is a saving clause and of no relevance for the present case.

Sources of International Law

13

41. I will not deal with the tricky question whether obligations erga omnes can be equated with obligations arising under a peremptory norm of general international law. In this respect I refer to the useful commentary of the ILC under the heading of Chapter III of its Articles. For argument’s sake I start from the assumption that the consequences of the violation of such obligations are identical.

42. Paragraph 1 of Article 41 explicitly refers to a duty to co-operate. As paragraph 3 of the commentary states "What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches." And paragraph 2 refers to "co-operation ... in the framework of a competent international organization, in particular the United Nations". Article 41, paragraph 1, therefore does not refer to individual obligations of third States as a result of a serious breach. What is said there is encompassed in the Court’s finding in operative subparagraph (3) (E) and not in subparagraph (3) (D).

43. Article 41, paragraph 2, however, explicitly mentions the duty not to recognize as lawful a situation created by a serious breach just as operative subparagraph (3) (D) does. In its commentary the ILC refers to unlawful situations which - virtually without exception - take the form of a legal claim, usually to territory. It gives as examples "an attempted acquisition of sovereignty over territory through denial of the right of self-determination", the annexation of Manchuria by Japan and of Kuwait by Iraq, South-Africa’s claim to Namibia, the Unilateral Declaration of Independence in Rhodesia and the creation of Bantustans in South Africa. In other words, all examples mentioned refer to situations arising from formal or quasi-formal promulgations intended to have an erga omnes effect. I have no problem with accepting a duty of non-recognition in such cases.

44. I have great difficulty, however, in understanding what the duty not to recognize an illegal fact

involves.

What

are

the

individual

addressees

of

this

part

of

operative

subparagraph (3) (D) supposed to do in order to comply with this obligation? That question is even more cogent considering that 144 States unequivocally have condemned the construction of the wall as unlawful (res. ES-10/13), whereas those States which abstained or voted against (with the exception of Israel) did not do so because they considered the construction of the wall as legal. The duty not to recognize amounts, therefore, in my view to an obligation without real substance.

14

Sources of International Law

45. That argument does not apply to the second obligation mentioned in Article 41, paragraph 2, namely the obligation not to render aid or assistance in maintaining the situation created by the serious breach. I therefore fully support that part of operative subparagraph (3) (D). Moreover, I would have been in favour of adding in the reasoning or even in the operative part a sentence reminding States of the importance of rendering humanitarian assistance to the victims of the construction of the wall. (The Court included a similar sentence, be it with a different scope, in its Opinion in the Namibia case, I.C.J. Reports 1971, p. 56, para. 125.)

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005 [pp. 349-350 S.O. Simma] 38. Let me conclude with a more general observation on the community interest underlying international humanitarian and human rights law. I feel compelled to do so because of the notable hesitation and weakness with which such community interest is currently manifesting itself vis-à-vis the ongoing attempts to dismantle important elements of these branches of international law in the proclaimed "war" on international terrorism.

39. As against such undue restraint it is to be remembered that at least the core of the obligations deriving from the rules of international humanitarian and human rights law are valid erga omnes. According to the Commentary of the ICRC to Article 4 of the Fourth Geneva Convention, "[t]he spirit which inspires the Geneva Conventions naturally makes it desirable that they should be applicable ‘erga omnes’, since they may be regarded as the codification of accepted principles"1. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons the Court stated that "a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary 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 1996 (I), p. 257,

Sources of International Law

15

para. 79). Similarly, in the Wall Advisory Opinion, the Court affirmed that the rules of international humanitarian law "incorporate obligations which are essentially of an erga omnes character" (I.C.J. Reports 2004, p. 199, para. 157).

40. As the Court indicated in the Barcelona Traction case, obligations erga omnes are by their very nature "the concern of all States" and, "[i]n 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, p. 32, para. 33). In the same vein, the International Law Commission has stated in the Commentaries to its Articles on the Responsibility of States for Internationally Wrongful Acts, that there are certain rights in the protection of which, by reason of their importance, "all States have a legal interest ..." (A/56/10 at p. 278)2.

41. If the international community allowed such interest to erode in the face not only of violations of obligations erga omnes but of outright attempts to do away with these fundamental duties, and in their place to open black holes in the law in which human beings may be disappeared and deprived of any legal protection whatsoever for indefinite periods of time, then international law, for me, would become much less worthwhile.

*

2.1.5. Relation between the Sources of International Law

2.2. Customary International Law

1

Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, J.S. Pictet (ed.), 1985,, p. 48.

2

Concerning the specific question of standing in case of breaches of obligations erga omnes the Institute of International Law, in a resolution on the topic of obligations of this nature adopted at its Krakow Session of 2005, accepted the following provisions: "Article 3 In the event of there being a jurisdictional link between a State alleged to have committed a breach of an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to bring a claim to the International Court of Justice or other international judicial institution in relation to a dispute concerning compliance with that obligation. Article 4 The International Court of Justice or other international judicial institution should give a State to which an obligation erga omnes is owed the possibility to participate in proceedings pending before the Court or that institution and relating to that obligation. Specific rules should govern this participation.”

16

Sources of International Law 2.2.1. Formation of Customary International Law

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[p. 21-22] 53. In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative

in

international

negotiations

and

intergovernmental

meetings.

Ambassadors and other diplomatic agents carry out their duties under his or her authority. His or her acts may bind the State represented, and there is a presumption that a Minister for Foreign Affairs, simply by virtue of that office, has full powers to act on behalf of the State (see, e.g., Art. 7, para. 2 (a), of the 1969 Vienna Convention on the Law of Treaties). In the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. He or she must also be in constant communication with the Government, and with its diplomatic missions around the world, and be capable at any time of communicating with representatives of other States. The Court further observes that a Minister for Foreign Affairs, responsible for the conduct of his or her State’s relations with all other States, occupies a position such that, like the Head of State or the Head of Government, he or she is recognized under international law as representative of the State solely by virtue of his or her office. He or she does not have to present letters of credence: to the contrary, it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence. Finally, it is to the Minister for Foreign Affairs that chargés d’affaires are accredited.

Sources of International Law

17

54. The Court accordingly concludes that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.

[pp. 144-145 D.O. Van den Wyngaert] 13. In the present case, there is no settled practice (usus) about the postulated "full" immunity of Foreign Ministers to which the International Court of Justice refers in paragraph 54 of its present Judgment. There may be limited State practice about immunities for current3 or former Heads of State4 in national courts, but there is no such practice about Foreign Ministers. On the contrary, the practice rather seems to be that there are hardly any examples of Foreign Ministers being granted immunity in foreign jurisdictions5. Why this is so is a matter of speculation. The question, however, is what to infer from this "negative practice". Is this the expression of an opinio juris to the effect that international law prohibits criminal proceedings or, concomitantly, that Belgium is under an international obligation to refrain from instituting such proceedings against an incumbent Foreign Minister? A "negative practice" of States, consisting in their abstaining from instituting criminal proceedings, cannot, in itself, be seen as evidence of an opinio juris. Abstinence may be explained by many other reasons, including courtesy, political considerations, practical

3

Cour de Cassation (Fr.), 13 Mar. 2001 (Qaddafi).

4

R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte, 25 Nov. 1998, [1998] 4 All ER 897.

5

Only one case has been brought to the attention of the Court: Chong Boon Kim v. Kim Yong Shik and David Kim, Circuit Court (First Circuit, State of Hawaii), 9 Sep. 1963, 58 AJIL 1964, pp. 186–187. This case was about an incumbent Foreign Minister against whom process was served while he was on an official visit in the United States (see para. 1 of the “Suggestion of Interest Submitted on behalf of the United States”, ibid.). Another case where immunity was recognised, not of a Minister but of a prince, was in the case of Kilroy v. Windsor (Prince Charles, Prince of Wales), US District Court for the N.D. of Ohio, 7 Dec. 1978, International Law Reports, Vol. 81, 1990, pp. 605–607. In that case, the judge observes: “The Attorney–General ... has determined that the Prince of Wales is immune from suit in this matter and has filed a ‘suggestion of immunity’ with the Court ... [T]he doctrine, being based on foreign policy considerations and the Executive’s desire to maintain amiable relations with foreign States, applies with even more force to live persons representing a foreign nation on an official visit.” (Emphasis added.)

18

Sources of International Law

concerns and lack of extraterritorial criminal jurisdiction6. Only if this abstention was based on a conscious decision of the States in question can this practice generate customary international law.

[pp. 154-156 D.O. Van den Wyngaert] 27. ... In legal doctrine, there is a plethora of recent scholarly writings on the subject. Major scholarly organizations, including the International Law Association7 and the Institut de droit international have adopted resolutions8 and newly established think tanks, such as the drafters of the "Princeton principles"9 and of the "Cairo principles"10 have made statements on the issue. Advocacy organizations, such as Amnesty International11, Avocats sans Frontières12, Human Rights Watch, The International

6

In some States, for example, the United States, victims of extraterritorial human rights abuses can bring civil actions before the Courts. See, for example, the Karadzic case (Kadic v. Karadzic, 70 F. 3d 232 (2d Cir. 1995)). There are many examples of civil suits against incumbent or former Heads of State, which often arose from criminal offences. Prominent examples are the Aristeguieta case (Jimenez v. Aristeguieta, ILR 1962, p. 353), the Aristide case (Lafontant v. Aristide, 844 F. Supp. 128 (EDNY 1994), noted in 88 AJIL 1994, pp. 528– 532), the Marcos cases (Estate of Silme G. Domingo v. Ferdinand Marcos, No. C82–1055V, AJIL 1983, p. 305: Republic of the Philippines v. Marcos and Others (1986), ILR 81, p. 581 and Republic of the Philippines v. Marcos and others, 1987, 1988, ILR 81, pp. 609 and 642) and the Duvalier case (Jean–Juste v. Duvalier, No. 86–0459 Civ (US District Court, SD Fla.), 82 AJIL 1988, p. 596), all mentioned and discussed by Watts (A. Watts, “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers”, Recueil des Cours de l’Académie de droit international, 1994, III, pp. 54 et seq.). See also the American 1996 Antiterrorism and Effective Death Penalty Act which amended the Foreign Sovereign Immunities Act (FSIA), including a new exception to State immunity in case of torture for civil claims. See J. F. Murphy, “Civil liability for the Commission of International Crimes as an Alternative to Criminal Prosecution”, 12 Harvard Human Rights Journal, 1999, pp. 1–56.

7

International Law Association (Committee on International Human Rights Law and Practice), Final Report on the Exercise of Universal Jurisdiction in respect of Gross Human Rights Offences, 2000.

8

See also the Institut de droit international’s Resolution of Santiago de Compostela, 13 Sep. 1989, commented by G. Sperduti, “Protection of human rights and the principle of non– intervention in the domestic concerns of States. Rapport provisoire”, Yearbook of the Institute of International Law, Session of Santiago de Compostela, 1989, Vol. 63, Part I, pp. 309–351.

9

Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction, 23 July 2001, with a foreword by Mary Robinson, United Nations High Commissioner for Human Rights, http://www.princeton.edu/~lapa/unive_jur.pdf. See M. C. Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, Virginia Journal of International Law, 2001, Vol. 42, pp. 1–100. Sep. 2001, AI Index IOR 53/2001.

10

Africa Legal Aid (AFLA), Preliminary Draft of the Cairo Guiding Principles on Universal Jurisdiction in Respect of Gross Human Rights Offenses: An African Perspective, Cairo, 31 July 2001, http://www.afla.unimaas.nl/ en/act/univjurisd/preliminaryprinciples.htm.

11

Amnesty International, Universal Jurisdiction. The Duty of States to Enact and Implement Legislation, Sep. 2001, AI Index IOR 53/2001.

Sources of International Law

19

Federation of Human Rights Leagues (FIDH) and the International Commission of Jurists13, have taken clear positions on the subject of international accountability14. This may be seen as the opinion of civil society, an opinion that cannot be completely discounted in formation of customary international law today. In several cases, civil society organizations have set in motion a process that ripened into international conventions15. Well–known examples are the 1968 Convention on the Non–Applicability of Statutory Limitations to War Crimes and Crimes against Humanity16, which can be traced back to efforts of the International Association of Penal law, the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, probably triggered by Amnesty International’s Campaign against Torture, the 1997 Treaty banning Landmines17 , to which the International Campaign to Ban Landmines gave a considerable impetus18 and the 1998 Statute for the International Criminal Court, which was promoted by a coalition of non–governmental organizations.

28. The Court fails to acknowledge this development, and does not discuss the relevant sources. Instead, it adopts a formalistic reasoning, examining whether there is, under customary international law, an international crimes exception to the – wrongly postulated – rule of immunity for incumbent Ministers under customary international law (Judgment, 12

Avocats sans frontières, “Débat sur la loi relative à la répression des violations graves de droit international humanitaire”, discussion paper of 14 Oct. 2001, available on http://www.asf.be.

13

K. Roth, “The Case For Universal Jurisdiction”, Foreign Affairs, Sep./Oct. 2001, responding to an article written by an ex–Minister of Foreign Affairs in the same review (Henry Kissinger, “The Pitfalls of Universal Jurisdiction”, Foreign Affairs, July/Aug. 2001).

14

See the joint Press Report of Human Rights Watch, the International Federation of Human Rights Leagues and the International Commission of Jurists, “Rights Group Supports Belgium’s Universal Jurisdiction Law”, 16 Nov. 2000, available at http://www.hrw.org/press/2000/11/world–court.htm or http://www.icj.org/press/press01/ english/belgium11.htm. See also the efforts of the International Committee of the Red Cross in promoting the adoption of international instruments on international humanitarian law and its support of national implementation efforts (http://www.icrc.org/eng/ advisory_service_ihl; http://www.icrc.org/eng/ihl).

15

M. C. Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, Virginia Journal of International Law, 2001, Vol. 42, p. 92.

16

Convention on the Non–Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, New York, 26 Nov. 1968, ILM 1969, p. 68.

17

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti– personnel Mines and on their Destruction, Oslo, 18 Sep. 1997, ILM 1997, p. 1507.

18

The International Campaign to Ban Landmines (ICBL) is a coalition of non–governmental organisations, with Handicap International, Human Rights Watch, Medico International,

20

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para. 58). By adopting this approach, the Court implicitly establishes a hierarchy between the rules on immunity (protecting incumbent former Ministers) and the rules on international accountability (calling for the investigation of charges against incumbent Foreign Ministers charged with war crimes and crimes against humanity).

*

2.2.2. Evidence of Customary International Law

*

2.3. Treaties

2.4. General Principles of Law

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 503] 103. 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 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). 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

Mines Advisory Group, Physicians for Human Rights, and Vietnam Veterans of America Foundation as founding members.

Sources of International Law

21

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 between 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)).

2.5. Unilateral Acts

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 266] 293. 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). Similarly, the International Law Commission, in its commentary on Article 45 of the Draft Articles on Responsibility of States for internationally wrongful acts, points out that "[a]lthough it may be possible to infer a waiver from the conduct of the States concerned or from a unilateral statement, the conduct or statement must be unequivocal" (ILC report, doc. A/56/10, 2001, p. 308). In the Court’s view, nothing in the conduct of Uganda in the period after May 1997 can be considered as implying an unequivocal waiver of its right to bring a counter-claim relating to events which occurred during the Mobutu régime.

22

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*

3. INTERNATIONAL LAW AND MUNICIPAL LAW

4. SUBJECTS OF INTERNATIONAL LAW 4.1. General Questions

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002 [p. 568-569 D.O. Ajibola] 93. The Court agrees with Cameroon in that it does not accept the submission of Nigeria that the City States of Old Calabar have international legal personality. As far as Cameroon is concerned, this is a myth or a kind of mirage. It argues that the City States of Old Calabar cannot claim any international legal entity separate from the State of Nigeria. During the oral proceedings counsel for Nigeria argued about the City States of Old Calabar thus: "These City States were the holders of an original historic title over the cities and their dependencies, and the Bakassi Peninsula was for long a dependency of Old Calabar." (Ibid., Vol. I, p. 67 para. 5.2.)

94. Although Cameroon accepts that "[w]ithout doubt, Efik trading took place over a vast area of what is now south–eastern Nigeria and western Cameroon" (Reply of Cameroon, Vol. I, p. 247, para. 5.24), yet it asserts that there were other ethnic groups in that area of the Bakassi Peninsula, which at that time showed a "complex pattern of human settlement" (ibid., Vol. I, p. 247, para. 5.24).

95. In deciding whether the City States of Old Calabar is an international legal entity, one should look to the nature of the Treaty entered into between Great Britain and the Kings and Chiefs of Old Calabar in 1884. In the first place, this is not the first treaty of this kind signed by the Kings and Chiefs. As I have already mentioned, Great Britain signed altogether 17 treaties of this kind with the Kings and Chiefs of Old Calabar. Secondly, Great Britain referred to it not as a mere agreement, a declaration or exchange of Notes, but as a treaty − "Treaty with the Kings and Chiefs of Old Calabar, September 10, 1884" (Counter–Memorial of Nigeria, Vol. IV, Ann. NC–M 23, p. 109). How then could Great Britain sign a document, and call it a treaty if it were not so? It would have been described as an "ordinance" had it

Subjects of International Law

23

been a document involving a colony of Great Britain. There is therefore no doubt that the City States of Old Calabar have international legal personality.

4.2. States 4.2.1. Jurisdiction of States

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [pp. 35 S.O. Guillaume] 1. [A] court’s jurisdiction is a question which it must decide before considering the immunity of those before it. In other words, there can only be immunity from jurisdiction where there is jurisdiction. Moreover, this is an important and controversial issue, clarification of which would have been in the interest of all States, including Belgium in particular.

[p. 51-52 D. O. Oda] 13. It is clear that a State cannot arrest an individual outside its territory and forcibly bring him before its courts for trial. In this connection, it is necessary to examine the effect of an arrest warrant issued by a State authority against an individual who is subject to that State’s jurisdiction to prescribe law. The arrest warrant is an official document issued by the State’s judiciary empowering the police authorities to take forcible action to place the individual under arrest. Without more, however, the warrant is not directly binding on foreign authorities, who are not part of the law enforcement mechanism of the issuing State. The individual may be arrested abroad (that is, outside the issuing State) only by the authorities of the State where he or she is present, since jurisdiction over that territory lies exclusively with that State. Those authorities will arrest the individual being sought by the issuing State only if the requested State is committed to do so pursuant to international arrangements with the issuing State. Interpol is merely an organization which transmits the arrest request from one State to another; it has no enforcement powers of its own. It bears stressing that the issuance of an arrest warrant by one State and the international circulation of the warrant through Interpol have no legal impact unless the arrest request is validated by the receiving State. The Congo appears to have failed to grasp that the mere issuance and international circulation of an arrest warrant have little significance. There is

24

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even some doubt whether the Court itself properly understood this, particularly as regards a warrant’s legal effect. The crucial point in this regard is not the issuance or international circulation of an arrest warrant but the response of the State receiving it.

[p. 60 S.O. Koroma] 5. Although immunity is predicated upon jurisdiction whether national or international it must be emphasized that the concepts are not the same. Jurisdiction relates to the power of a State to affect the rights of a person or persons by legislative, executive or judicial means, whereas immunity represents the independence and the exemption from the jurisdiction or competence of the courts and tribunals of a foreign State and is an essential characteristic of a State. Accordingly, jurisdiction and immunity must be in conformity with international law. It is not, however, that immunity represents freedom from legal liability as such, but rather that it represents exemption from legal process. The Court was therefore justified that in this case, in its legal enquiry, it took as its point of departure one of the issues directly relevant to the case for determination, namely whether international law permits an exemption from immunity of an incumbent Foreign Minister and whether the arrest warrant issued against the Foreign Minister violates international law, and came to the conclusion that international law does not permit such exemption from immunity.

[pp. 61-62 S.O. Koroma] 8. ... in my view, the issue and circulation of the arrest warrant show how seriously Belgium views its international obligation to combat international crimes. Belgium is entitled to invoke its criminal jurisdiction against anyone, save a Foreign Minister in office. It is unfortunate that the wrong case would appear to have been chosen in attempting to carry out what Belgium considers its international obligation.

9. Against this background, the Judgment cannot be seen either as a rejection of the principle of universal jurisdiction, the scope of which has continued to evolve, or as an invalidation of that principle. In my considered opinion, today, together with piracy, universal jurisdiction is available for certain crimes, such as war crimes and crimes against humanity, including the slave trade and genocide. The Court did not rule on universal jurisdiction, because it was not indispensable to do so to reach its conclusion, nor was such submission before it. This, to some extent, provides the explanation for the position taken by the Court.

Subjects of International Law

25

[pp. 64 J.S.O. Higgins, Kooijmans, Buergenthal] 3. ... "Immunity" is the common shorthand phrase for "immunity from jurisdiction". If there is no jurisdiction en principe, then the question of an immunity from a jurisdiction which would otherwise exist simply does not arise. The Court, in passing over the question of jurisdiction, has given the impression that "immunity" is a free–standing topic of international law. It is not. "Immunity" and "jurisdiction" are inextricably linked. Whether there is "immunity" in any given instance will depend not only upon the status of Mr. Yerodia but also upon what type of jurisdiction, and on what basis, the Belgian authorities were seeking to assert it.

4. While the notion of "immunity" depends, conceptually, upon a pre–existing jurisdiction, there is a distinct corpus of law that applies to each. What can be cited to support an argument about the one is not always relevant to an understanding of the other. In bypassing the issue of jurisdiction the Court has encouraged a regrettable current tendency (which the oral and written pleadings in this case have not wholly avoided) to conflate the two issues.

5. Only if it is fully appreciated that there are two distinct norms of international law in play (albeit that the one immunity can arise only if the other jurisdiction exists) can the larger picture be seen. One of the challenges of present–day international law is to provide for stability of international relations and effective international intercourse while at the same time guaranteeing respect for human rights. The difficult task that international law today faces is to provide that stability in international relations by a means other than the impunity of those responsible for major human rights violations. This challenge is reflected in the present dispute and the Court should surely be engaged in this task, even as it fulfils its function of resolving a dispute that has arisen before it. But through choosing to look at half the story immunity it is not in a position to do so.

[p. 84 J.S.O. Higgins, Kooijmans, Buergenthal] 69. We do not feel it can be said that, given these explanations by Belgium, there was no exercise of jurisdiction as such that could attract immunity or infringe the Congo’s sovereignty. If a State issues an arrest warrant against the national of another State, that other State is entitled to treat it as such certainly unless the issuing State draws to the attention of the national State the clauses and provisions said to vacate the warrant of all efficacy. Belgium has conceded that the purpose of the international circulation of the warrant was "to establish a legal basis for the arrest of Mr. Yerodia ... abroad

26

Subjects of International Law

and his subsequent extradition to Belgium". An international arrest warrant, even though a Red Notice has not yet been linked, is analogous to the locking–on of radar to an aircraft: it is already a statement of willingness and ability to act and as such may be perceived as a threat so to do at a moment of Belgium’s choosing. Even if the action of a third State is required, the ground has been prepared.

[p. 91 S.O. Rezek] 2. No immunity is absolute, in any legal order. An immunity must necessarily exist within a particular context, and no subject of law can enjoy immunity in the abstract. Thus, an immunity might be available before one national court but not before another. Similarly, an imunity might be effective in respect of domestic courts, but not of an international one. Within a given legal order, an immunity might be relied upon in relation to criminal proceedings but not to civil proceedings, or vis-à-vis an ordninary court but not a special one.

3. The question of jurisdiction thus inevitably precedes that of immunity. Moreover, the two issues were debated at length by the Parties both in their written pleadings and in oral argument. The fact that the Congo confined itself in its final submissions to asking the Court to render a decision based on its former Minister’s immunity vis-à-vis the Belgian domestic court does not justify the Court’s disregard of an inescapable premise underlying consideration of the issue of immunity. Here, the point is not to follow the order in which the issues were submitted to the Court for consideration but rather to respect the order which a strictly logical approach requires. Otherwise, we are impelled towards a situation where the Court is deciding whether or not there would be immunity in the event that the Belgian courts were to have jurisdiction…

[pp. 168-169 D.O. Van den Wyngaert] 49. ... A distinction must be made between prescriptive jurisdiction and enforcement jurisdiction. The above–mentioned dictum concerns prescriptive jurisdiction: it is about what a State may do on its own territory when investigating and prosecuting crimes committed abroad, not about what a State may do on the territory of other States when prosecuting such crimes. Obviously, a State has no enforcement jurisdiction outside its territory: a State may, failing permission to the contrary, not exercise its power on the territory of another State. This is "the first and foremost restriction imposed

Subjects of International Law

27

by international law upon a State"19. In other words, the permissive rule only applies to prescriptive jurisdiction, not to enforcement jurisdiction: failing a prohibition, State A may, on its own territory, prosecute offences committed in State B (permissive rule); failing a permission, State A may not act on the territory of State B.

50. Does the arrest warrant of 11 April 2000 come under the first species of jurisdiction, under the second, or under both? In other words: has Belgium, by asserting jurisdiction in the form of the issuing and circulation of an arrest warrant on charges of war crimes and crimes against humanity against a foreign national for crimes committed abroad, engaged in prescriptive jurisdiction, in enforcement jurisdiction, or in both? Given the fact that the warrant has never been enforced, the dispute is in the first place about prescriptive jurisdiction. However, the title of the warrant ("international arrest warrant") gave rise to questions about enforcement jurisdiction also. I believe that Belgium, by issuing and circulating the warrant, violated neither the rules on prescriptive jurisdiction nor the rules on enforcement jurisdiction. My views on enforcement jurisdiction will be part of my reasoning in Section IV, where I will consider whether there was an internationally wrongful act in the present case. In the present Section, I will deal with prescriptive jurisdiction. I will measure the statutory provision that is at the centre of the dispute, Article 7 of the 1993/1999 Belgian Act, against the yardstick of the "Lotus" test on prescriptive jurisdiction.

51. It follows from the "Lotus" case that a State has the right to provide extraterritorial jurisdiction on its territory unless there is a prohibition under international law. I believe that there is no prohibition under international law to enact legislation allowing it to investigate and prosecute war crimes and crimes against humanity committed abroad. It has often been argued, not without reason, that the "Lotus" test is too liberal and that, given the growing complexity of contemporary international intercourse, a more restrictive approach should be adopted today20. In the Nuclear Weapons case, there were two groups of States each giving a

19

“Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 18.

20

Cf. American Law Institute, Restatement (Third) Foreign Relations Law of the United States, (1987), pp. 235–236; I. Cameron, The Protective Principle of International Criminal Jurisdiction, Aldershot, Dartmouth, 1994, p. 319; F. A. Mann, “The Doctrine of International Jurisdiction Revisited After Twenty Years”, Recueil des Cours de l’Académie de droit international Vol. 111, 1964, I, p. 35; R. Higgins, Problems and Process. International Law

28

Subjects of International Law

different interpretation of "Lotus" on this point21 and President Bedjaoui, in his declaration, expressed hesitations about "Lotus"22. Even under the more restrictive view, Belgian legislation stands. There is ample evidence in support of the proposition that international law clearly permits States to provide extraterritorial jurisdiction for such crimes.

[p. 182 D.O. Van den Wyngaert] 80. The warrant could not be and was not executed in the country where it was issued (Belgium) or in the countries to which it was circulated. The warrant was not executed in Belgium when Mr. Yerodia visited Belgium officially in June 2000. Belgium did not lodge an extradition request to third countries or a request for the provisional arrest for the purposes of extradition. The warrant was not an "international arrest warrant", despite the language used by the Belgian judge. It could and did not have this effect, neither in Belgium nor in third countries. The allegedly wrongful act was a purely domestic act, with no actual extraterritorial effect.

*

4.2.2. Territory

*

4.2.3. Nationality

4.2.4. Organs

Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003 [pp. 131-133 D.O. de Cara] In the international order the Head of State represents the State in all aspects of its international intercourse and this general authority, called the jus repraesentationis omnimodae, follows from international law as much as, or even more than, from national constitutional law. Sir Arthur Watts summarizes the position as follows : « It

and How We Use It, 1994, p. 77. See also Council of Europe, Extraterritorial jurisdiction in criminal matters, Strasbourg, 1990, pp. 20 et seq. 21

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, pp. 238–239, para. 21.

22

I.C.J. Reports 1996, p. 270, para. 12.

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29

may be said generally that nowadays Heads of States through their office manifest the spirit and grandeur of their nation as a whole. » 23 True, the international order traditionally provides means for making good such an injury to the standing or honour of a State and a subsequent judgment by the Court would constitute adequate reparation for the damage caused to the Congo in its relations with other members of the international community. On the other hand, nothing could make good the loss of reputation and honour suffered by a Head of State in the eyes of his people, who remain sensitive to press reports and propaganda disseminated by opponents. It is important to keep in mind that the present case involves an African Head of State. Owing to the civil wars and tragic events having marked the continent in recent years, rumours and accusations directed at one or another leader are easily given some credence, even though like accusations would raise smile or be considered frivolous elsewhere. In Africa the Head of State occupies a very special position, for « the people have a stronger sense of ethnic solidarity than of national or State solidarity », as Raymond Aron observed : « lacking cohesion as a result of the multiplicity of tribes, African States are prenational or sub-national, as it were, in that the State does not have before it a unified nation. » He added that this new type of State « is territorial and national : territorial in that the sovereign is entitled to do as he pleases within its boundaries ; national in that the sovereign sees himself not as the possessor of the land nor as the master of those occupying it but as the embodiment of a people »24. Accordingly, the Head of State identifies the group, he incarnates the national will, he performs a « rallying » function, he symbolizes the existence of the nation and any accusation against him or attempted harm to his person is perceived as an attack on the State he represents in the manifestation of a certain unanism, even though unanism is fleeting. This has led one author to conclude : « An African Head of State who has been a leader and the first witness to the national ideal, to its sovereignty, who in tomorrow’s Africa will assuredly be a soldier, has as his prime mission proving the existence of the State. » 25

23 Sir Arthur Watts, The Legal Position in International Law of Heads of State, Heads of Government

and Foreign Ministers, Recueil des Cours de l’Académie de droit international de La Haye, 1944, Vol. 247, p. 32. 24 Paix et guerre entre les nations, 1962, pp. 394-396. 25 Bernard Asso, Le chef d’Etat africain, 1976, p. 346.

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Now, foreign criminal proceedings initiated under murky circumstances against political leaders who prevailed after years of civil war can contribute to destabilizing the Government. A court which lends itself, even unintentionally, to manipulation by public opinion in a foreign country interferes in the internal affairs of that State. The prejudice is irreparable, as it undermines the legitimacy and stability of the foreign governmental authority. The Court did not wish to take account of this situation. It draws an abstract, categorical distinction between the rights to be protected and the prejudice arising from the violation of those rights, taking the view that irreparable prejudice would not be caused to the rights as such claimed by the Congo but might be regarded as such as to affect irreparably the rights asserted in the Application. First, it appears to me that what is at issue is not the separateness or magnitude of the injury; the crux is whether a causal nexus between the injurious act and the damage can be established: the violation of the right or the act giving rise to responsibility must be the cause of prejudice. Once this nexus has been established, it suffices to find that there is prejudice or, for the indication of provisional measures, a risk of irreparable prejudice. Secondly, in the political order it is not possible to stop at a mechanical analysis isolating each injury or event with a view to connecting it with its efficient cause. In itself, the violation of the rights which the Congo seeks to protect creates prejudice, for example in the case of immunity ; it can, however, also create other irreparable prejudice which may be observed in the future. That prejudice is difficult if not impossible to prove before it is suffered but it may be infinitely more serious, as in the case of the destabilization of the country. A formalistic approach confining itself to consideration of the asserted rights for which protection is sought disregards the fact that the violation of one right can give rise to a series of injuries likely to affect other rights and, more generally, legal interests worthy of preservation. In this regard, there is nothing to prevent the Court, in assessing the « circumstances » calling for the indication of provisional measues, from taking account of the legitimate interests of a party. Further, the development of the law of civil liability, notably in France, shows the court’s desire that the right to compensation for an injury caused to « a right » should be extended to the prejudice impairing a « legitimate interest » of the victim. The desire to preserve the international stability of the country, under threat of being undermined as a result of the allegations of criminal conduct levelled at the country’s leaders, is a legitimate legal interest of the Congo. This attack on national independence is clearly irreparable and once the Government has been shaken, a subsequent decision by the Court upholding the Congo’s Application could come too late.

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31

4.2.5. Fundamental Rights and Obligations 4.2.5.1. Sovereignty

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 251-252] 244. The Court finds that it cannot uphold the contention of the DRC that Uganda violated the principle of the DRC’s sovereignty over its natural resources (see paragraph 226 above). The Court recalls that the principle of permanent sovereignty over natural resources is expressed in General Assembly resolution 1803 (XVII) of 14 December 1962 and further elaborated in the Declaration on the Establishment of a New International Economic Order (General Assembly resolution 3201 (S.VI) of 1 May 1974) and the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (XXIX) of 12 December 1974). While recognizing the importance of this principle, which is a principle of customary international law, the Court notes that there is nothing in these General Assembly resolutions which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the DRC’s third submission. The Court does not believe that this principle is applicable to this type of situation. *

4.2.5.2. Equality

*

4.2.5.3. Peaceful Settlement of Disputes

*

4.2.5.4. Obligations of Cooperation and Negotiation

4.2.6. Succession of States

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) Judgment of 3 February 2003

32

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[pp. 52 Decl. Rezek] 6. Otherwise, I would have proposed denying in limine the Application for revision but for a reason diametrically opposed to those relied upon by the majority : the Federal Republic of Yugoslavia, one of the newest Members of the United Nations, is not the entity considered by the Court to be the Responent in the Judgment of 11 July 1996. Accordingly, the new Yugoslavia does not have standing to seek revision. It is not a party to the dispute submitted to the Court by Bosnia and Herzegovina. It will be for the Court to decide at the appropriate time whether that dispute is extant in the absence of the Respondent.

4.2.7. Immunity of States

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 20-22] 51. The Court would observe at the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high– ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal. For the purposes of the present case, it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that fall for the Court to consider.

52. A certain number of treaty instruments were cited by the Parties in this regard. These included, first, the Vienna Convention on Diplomatic Relations of 18 April 1961, which states in its preamble that the purpose of diplomatic privileges and immunities is "to ensure the efficient performance of the functions of diplomatic missions as representing States". It provides in Article 32 that only the sending State may waive such immunity. On these points, the Vienna Convention on Diplomatic Relations, to which both the Congo and Belgium are parties, reflects customary international law. The same applies to the corresponding provisions of the Vienna Convention on Consular Relations of 24 April 1963, to which the Congo and Belgium are also parties.

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The Congo and Belgium further cite the New York Convention on Special Missions of 8 December 1969, to which they are not, however, parties. They recall that under Article 21, paragraph 2, of that Convention: "The Head of the Government, the Minister for Foreign Affairs and other persons of high rank, when they take part in a special mission of the sending State, shall enjoy in the receiving State or in a third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law." These conventions provide useful guidance on certain aspects of the question of immunities. They do not, however, contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs. It is consequently on the basis of customary international law that the Court must decide the questions relating to the immunities of such Ministers raised in the present case.

53. In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative

in

international

negotiations

and

intergovernmental

meetings.

Ambassadors and other diplomatic agents carry out their duties under his or her authority. His or her acts may bind the State represented, and there is a presumption that a Minister for Foreign Affairs, simply by virtue of that office, has full powers to act on behalf of the State (see, e.g., Art. 7, para. 2 (a), of the 1969 Vienna Convention on the Law of Treaties). In the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position freely to do so whenever the need should arise. He or she must also be in constant communication with the Government, and with its diplomatic missions around the world, and be capable at any time of communicating with representatives of other States. The Court further observes that a Minister for Foreign Affairs, responsible for the conduct of his

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or her State’s relations with all other States, occupies a position such that, like the Head of State or the Head of Government, he or she is recognized under international law as representative of the State solely by virtue of his or her office. He or she does not have to present letters of credence: to the contrary, it is generally the Minister who determines the authority to be conferred upon diplomatic agents and countersigns their letters of credence. Finally, it is to the Minister for Foreign Affairs that chargés d’affaires are accredited.

54. The Court accordingly concludes that the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.

55. In this respect, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an "official" capacity, and those claimed to have been performed in a "private capacity", or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office. Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is clearly thereby prevented from exercising the functions of his or her office. The consequences of such impediment to the exercise of those official functions are equally serious, regardless of whether the Minister for Foreign Affairs was, at the time of arrest, present in the territory of the arresting State on an "official" visit or a "private" visit, regardless of whether the arrest relates to acts allegedly performed before the person became the Minister for Foreign Affairs or to acts performed while in office, and regardless of whether the arrest relates to alleged acts performed in an "official" capacity or a "private" capacity. Furthermore, even the mere risk that, by travelling to or transiting another State a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister

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from travelling internationally when required to do so for the purposes of the performance of his or her official functions.

[pp. 23-26] 56. The Court will now address Belgium’s argument that immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect them where they are suspected of having committed war crimes or crimes against humanity. In support of this position, Belgium refers in its Counter–Memorial to various legal instruments creating international criminal tribunals, to examples from national legislation, and to the jurisprudence of national and international courts. ... 58. The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter (see Charter of the International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27). It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts. Finally, none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the International Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes

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or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reached above. In view of the foregoing, the Court accordingly cannot accept Belgium’s argument in this regard.

59. It should further be noted that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.

60. The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.

61. Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law.

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Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person".

[pp. 26-30] 67. The Court will first recall that the "international arrest warrant in absentia", issued on 11 April 2000 by an investigating judge of the Brussels Tribunal de première instance, is directed against Mr. Yerodia, stating that he is "currently Minister for Foreign Affairs of the Democratic Republic of the Congo, having his business address at the Ministry of Foreign Affairs in Kinshasa". The warrant states that Mr. Yerodia is charged with being "the perpetrator or co–perpetrator" of: " - Crimes under international law constituting grave breaches causing harm by act or omission to persons and property protected by the Conventions signed at Geneva on 12 August 1949 and by Additional Protocols I and II to those Conventions (Article 1, paragraph 3, of the Law of 16 June 1993, as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humanitarian law).

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- Crimes against humanity (Article 1, paragraph 2, of the Law of 16 June 1993, as amended by the Law of 10 February 1999 concerning the punishment of serious violations of international humanitarian law)." The warrant refers to "various speeches inciting racial hatred" and to "particularly virulent remarks" allegedly made by Mr. Yerodia during "public addresses reported by the media" on 4 August and 27 August 1998. It adds: " These speeches allegedly had the effect of inciting the population to attack Tutsi residents of Kinshasa: there were dragnet searches, manhunts (the Tutsi enemy) and lynchings. The speeches inciting racial hatred thus are said to have resulted in several hundred deaths, the internment of Tutsis, summary executions, arbitrary arrests and unfair trials."

68. The warrant further states that "the position of Minister for Foreign Affairs currently held by the accused does not entail immunity from jurisdiction and enforcement". The investigating judge does, however, observe in the warrant that "the rule concerning the absence of immunity under humanitarian law would appear ... to require some qualification in respect of immunity from enforcement" and explains as follows: "Pursuant to the general principle of fairness in judicial proceedings, immunity from enforcement must, in our view, be accorded to all State representatives welcomed as such onto the territory of Belgium (on ‘official visits’). Welcoming such foreign dignitaries as official representatives of sovereign States involves not only relations between individuals but also relations between States. This implies that such welcome includes an undertaking by the host State and its various components to refrain from taking any coercive measures against its guest and the invitation cannot become a pretext for ensnaring the individual concerned in what would then have to be labelled a trap. In the contrary case, failure to respect this undertaking could give rise to the host State’s international responsibility."

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69. The arrest warrant concludes with the following order: "We instruct and order all bailiffs and agents of public authority who may be so required to execute this arrest warrant and to conduct the accused to the detention centre in Forest; We order the warden of the prison to receive the accused and to keep him (her) in custody in the detention centre pursuant to this arrest warrant; We require all those exercising public authority to whom this warrant shall be shown to lend all assistance in executing it."

70. The Court notes that the issuance, as such, of the disputed arrest warrant represents an act by the Belgian judicial authorities intended to enable the arrest on Belgian territory of an incumbent Minister for Foreign Affairs on charges of war crimes and crimes against humanity. The fact that the warrant is enforceable is clearly apparent from the order given to "all bailiffs and agents of public authority ... to execute this arrest warrant" (see paragraph 69 above) and from the assertion in the warrant that "the position of Minister for Foreign Affairs currently held by the accused does not entail immunity from jurisdiction and enforcement". The Court notes that the warrant did admittedly make an exception for the case of an official visit by Mr. Yerodia to – Belgium, and that Mr. Yerodia never suffered arrest in Belgium. The Court is bound, however, to find that, given the nature and purpose of the warrant, its mere issue violated the immunity which Mr. Yerodia enjoyed as the Congo’s incumbent Minister for Foreign Affairs. The Court accordingly concludes that the issue of the warrant constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of that Minister and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.

71. The Court also notes that Belgium admits that the purpose of the international circulation of the disputed arrest warrant was "to establish a legal basis for the arrest of Mr. Yerodia ... abroad and his subsequent extradition to Belgium". The Respondent maintains, however, that the enforcement of the warrant in third States was "dependent

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on some further preliminary steps having been taken" and that, given the "inchoate" quality of the warrant as regards third States, there was no "infringe[ment of] the sovereignty of the [Congo]". It further points out that no Interpol Red Notice was requested until 12 September 2001, when Mr. Yerodia no longer held ministerial office. The Court cannot subscribe to this view. As in the case of the warrant’s issue, its international circulation from June 2000 by the Belgian authorities, given its nature and purpose, effectively infringed Mr. Yerodia’s immunity as the Congo’s incumbent Minister for Foreign Affairs and was furthermore liable to affect the Congo’s conduct of its international relations. Since Mr. Yerodia was called upon in that capacity to undertake travel in the performance of his duties, the mere international circulation of the warrant, even in the absence of "further steps" by Belgium, could have resulted, in particular, in his arrest while abroad. The Court observes in this respect that Belgium itself cites information to the effect that Mr. Yerodia, "on applying for a visa to go to two countries, [apparently] learned that he ran the risk of being arrested as a result of the arrest warrant issued against him by Belgium", adding that "[t]his, moreover, is what the [Congo] ... hints when it writes that the arrest warrant ‘sometimes forced Minister Yerodia to travel by roundabout routes’". Accordingly, the Court concludes that the circulation of the warrant, whether or not it significantly interfered with Mr. Yerodia’s diplomatic activity, constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.

[pp. 35 S.O. Guillaume] [A] court’s jurisdiction is a question which it must decide before considering the immunity of those before it. In other words, there can only be immunity from jurisdiction where there is jurisdiction. Moreover, this is an important and controversial issue, clarification of which would have been in the interest of all States, including Belgium in particular.

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[p. 60 S.O. Koroma] 5. Although immunity is predicated upon jurisdiction whether national or international it must be emphasized that the concepts are not the same. Jurisdiction relates to the power of a State to affect the rights of a person or persons by legislative, executive or judicial means, whereas immunity represents the independence and the exemption from the jurisdiction or competence of the courts and tribunals of a foreign State and is an essential characteristic of a State. Accordingly, jurisdiction and immunity must be in conformity with international law. It is not, however, that immunity represents freedom from legal liability as such, but rather that it represents exemption from legal process. The Court was therefore justified that in this case, in its legal enquiry, it took as its point of departure one of the issues directly relevant to the case for determination, namely whether international law permits an exemption from immunity of an incumbent Foreign Minister and whether the arrest warrant issued against the Foreign Minister violates international law, and came to the conclusion that international law does not permit such exemption from immunity.

[pp. 64 J.S.O. Higgins, Kooijmans, Buergenthal] 3. ... "Immunity" is the common shorthand phrase for "immunity from jurisdiction". If there is no jurisdiction en principe, then the question of an immunity from a jurisdiction which would otherwise exist simply does not arise. The Court, in passing over the question of jurisdiction, has given the impression that "immunity" is a free–standing topic of international law. It is not. "Immunity" and "jurisdiction" are inextricably linked. Whether there is "immunity" in any given instance will depend not only upon the status of Mr. Yerodia but also upon what type of jurisdiction, and on what basis, the Belgian authorities were seeking to assert it.

4. While the notion of "immunity" depends, conceptually, upon a pre–existing jurisdiction, there is a distinct corpus of law that applies to each. What can be cited to support an argument about the one is not always relevant to an understanding of the other. In bypassing the issue of jurisdiction the Court has encouraged a regrettable current tendency (which the oral and written pleadings in this case have not wholly avoided) to conflate the two issues.

5. Only if it is fully appreciated that there are two distinct norms of international law in play (albeit that the one - immunity - can arise only if the other - jurisdiction - exists) can the larger picture be seen. One of the challenges of present–day international law is to provide for stability of international relations and effective international intercourse while at the same

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time guaranteeing respect for human rights. The difficult task that international law today faces is to provide that stability in international relations by a means other than the impunity of those responsible for major human rights violations. This challenge is reflected in the present dispute and the Court should surely be engaged in this task, even as it fulfils its function of resolving a dispute that has arisen before it. But through choosing to look at half the story - immunity - it is not in a position to do so.

[pp. 80-81 J.S.O. Higgins, Kooijmans, Buergenthal] 59. If, as we believe to be the case, a State may choose to exercise a universal criminal jurisdiction in absentia, it must also ensure that certain safeguards are in place. They are absolutely essential to prevent abuse and to ensure that the rejection of impunity does not jeopardize stable relations between States. No exercise of criminal jurisdiction may occur which fails to respect the inviolability or infringes the immunities of the person concerned. We return below to certain aspects of this facet, but will say at this juncture that commencing an investigation on the basis of which an arrest warrant may later be issued does not of itself violate those principles. The function served by the international law of immunities does not require that States fail to keep themselves informed. A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned. The Court makes reference to these elements in the context of this case at paragraph 16 of its Judgment. Further, such charges may only be laid by a prosecutor or juge d’instruction who acts in full independence, without links to or control by the government of that State. Moreover, the desired equilibrium between the battle against impunity and the promotion of good inter–State relations will only be maintained if there are some special circumstances that do require the exercise of an international criminal jurisdiction and if this has been brought to the attention of the prosecutor or juge d’instruction. For example, persons related to the victims of the case will have requested the commencement of legal proceedings.

[pp. 84-85 J.S.O. Higgins, Kooijmans, Buergenthal] 71. As to the matter of immunity, although we agree in general with what has been said in the Court’s Judgment with regard to the specific issue put before it, we nevertheless feel that the approach chosen by the Court has to a certain extent transformed the character of the case before it. By focusing exclusively on

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the immunity issue, while at the same time bypassing the question of jurisdiction, the impression is created that immunity has value per se, whereas in reality it is an exception to a normative rule which would otherwise apply. It reflects, therefore, an interest which in certain circumstances prevails over an otherwise predominant interest, it is an exception to a jurisdiction which normally can be exercised and it can only be invoked when the latter exists. It represents an interest of its own that must always be balanced, however, against the interest of that norm to which it is an exception. ... 74. The increasing recognition of the importance of ensuring that the perpetrators of serious international crimes do not go unpunished has had its impact on the immunities which high State dignitaries enjoyed under traditional customary law. Now it is generally recognized that in the case of such crimes, which are often committed by high officials who make use of the power invested in the State, immunity is never substantive and thus cannot exculpate the offender from personal criminal responsibility. It has also given rise to a tendency, in the case of international crimes, to grant procedural immunity from jurisdiction only for as long as the suspected State official is in office.

75. These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind to prevent and stop impunity for perpetrators of grave crimes against its members; on the other, there is the interest of the community of States to allow them to act freely on the inter–State level without unwarranted interference. A balance therefore must be struck between two sets of functions which are both valued by the international community. Reflecting these concerns, what is regarded as a permissible jurisdiction and what is regarded as the law on immunity are in constant evolution. The weights on the two scales are not set for all perpetuity. Moreover, a trend is discernible that in a world which increasingly rejects impunity for the most repugnant offences, the attribution of responsibility and accountability is becoming firmer, the possibility for the assertion of jurisdiction wider and the availability of immunity as a shield more limited. The law of privileges and immunities, however, retains its importance since immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter–State relations, which is of paramount importance for a well–ordered and harmonious international system.

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[pp. 86-89 J.S.O. Higgins, Kooijmans, Buergenthal] 79. We wish to point out, however, that the frequently expressed conviction of the international community that perpetrators of grave and inhuman international crimes should not go unpunished does not ipso facto mean that immunities are unavailable whenever impunity would be the outcome. The nature of such crimes and the circumstances under which they are committed, usually by making use of the State apparatus, makes it less than easy to find a convincing argument for shielding the alleged perpetrator by granting him or her immunity from criminal process. But immunities serve other purposes which have their own intrinsic value and to which we referred in paragraph 77 above. International law seeks the accommodation of this value with the fight against impunity, and not the triumph of one norm over the other. A State may exercise the criminal jurisdiction which it has under international law, but in doing so it is subject to other legal obligations, whether they pertain to the non–exercise of power in the territory of another State or to the required respect for the law of diplomatic relations or, as in the present case, to the procedural immunities of State officials. In view of the worldwide aversion to these crimes, such immunities have to be recognized with restraint, in particular when there is reason to believe that crimes have been committed which have been universally condemned in international conventions. It is, therefore, necessary to analyse carefully the immunities which under customary international law are due to high State officials and, in particular, to Ministers for Foreign Affairs.

80. Under traditional customary law the Head of State was seen as personifying the sovereign State. The immunity to which he was entitled was therefore predicated on status, just like the State he or she symbolised. Whereas State practice in this regard is extremely scarce, the immunities to which other high State officials (like Heads of Government and Ministers for Foreign Affairs) are entitled have generally been considered in the literature as merely functional. (Cf. Arthur Watts, "The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers", Recueil des Cours 1994–III, Vol. 247, pp. 102–103.)

81. We have found no basis for the argument that Ministers of Foreign Affairs are entitled to the same immunities as Heads of State. In this respect, it should be pointed out that paragraph 3.2 of the International Law Commission’s Draft Articles on Jurisdictional Immunities of States and their Property of 1991, which contained a saving clause for the privileges and

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immunities of Heads of State, failed to include a similar provision for those of Ministers for Foreign Affairs (or Heads of Government). In its commentary, the ILC, stated that mentioning the privileges and immunities of Ministers for Foreign Affairs would raise the issues of the basis and the extent of their jurisdictional immunity. In the opinion of the ILC these immunities were clearly not identical to those of Heads of State.

82. The Institut de droit international took a similar position in 2001 with regard to Foreign Ministers. Its resolution on the Immunity of Heads of State, based on a thorough report on all relevant State practice, states expressly that these "shall enjoy, in criminal matters, immunity from jurisdiction before the courts of a foreign State for any crime he or she may have committed, regardless of its gravity". But the Institut, which in this resolution did assimilate the position of Head of Government to that of Head of State, carefully avoided doing the same with regard to the Foreign Minister.

83. We agree, therefore, with the Court that the purpose of the immunities attaching to Ministers for Foreign Affairs under customary international law is to ensure the free performance of their functions on behalf of their respective States (Judgment, para. 53). During their term of office, they must therefore be able to travel freely whenever the need to do so arises. There is broad agreement in the literature that a Minister for Foreign Affairs is entitled to full immunity during official visits in the exercise of his function. This was also recognized by the Belgian investigating judge in the arrest warrant of 11 April 2000. The Foreign Minister must also be immune whenever and wherever engaged in the functions required by his office and when in transit therefor.

84. Whether he is also entitled to immunities during private travels and what is the scope of any such immunities, is far less clear. Certainly, he or she may not be subjected to measures which would prevent effective performance of the functions of a Foreign Minister. Detention or arrest would constitute such a measure and must therefore be considered an infringement of the inviolability and immunity from criminal process to which a Foreign Minister is entitled. The arrest warrant of 11 April 2000 was directly enforceable in Belgium and would have obliged the police authorities to arrest Mr. Yerodia had he visited that country for non–official reasons. The very issuance of the warrant therefore must be considered to constitute an

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infringement on the inviolability to which Mr. Yerodia was entitled as long as he held the office of Minister for Foreign Affairs of the Congo.

85. Nonetheless, that immunity prevails only as long as the Minister is in office and continues to shield him or her after that time only for "official" acts. It is now increasingly claimed in the literature (see e.g., Andrea Bianchi "Denying State Immunity to Violators of Human Rights", 46 Austrian Journal of Public and International Law (1994), pp. 227–228) that serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform: (Goff, J. (as he then was) and Lord Wilberforce articulated this test in the case of 1° Congreso del Partido (1978) QB 500 at 528 and (1983) AC 244 at 268, respectively). This view is underscored by the increasing realization that State–related motives are not the proper test for determining what constitutes public State acts. The same view is gradually also finding expression in State practice, as evidenced in judicial decisions and opinions. (For an early example, see the judgment of the Israel Supreme Court in the Eichmann case; Supreme Court, 29 May 1962, 36 International Law Reports, p. 312.) See also the speeches of Lords Hutton and Phillips of Worth Matravers in R v. Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet ("Pinochet III"); and of Lords Steyn and Nicholls of Birkenhead in "Pinochet I", as well as the judgment of the Court of Appeal of Amsterdam in the Bouterse case (Gerechtshof Amsterdam, 20 November 2000, para. 4.2.)

[p. 91 S.O. Rezek] 2. No immunity is absolute, in any legal order. An immunity must necessarily exist within a particular context, and no subject of law can enjoy immunity in the abstract. Thus, an immunity might be available before one national court but not before another. Similarly, an immunity might be effective in respect of domestic courts but not of an international one. Within a given legal order, an immunity might be relied upon in relation to criminal proceedings but not to civil proceedings, or vis-à-vis an ordinary court but not a special tribnal.

3. The question of jurisdiction thus inevitably precedes that of immunity. Moreover, the two issues were debated at length by the Parties both in their written pleadings and in oral argument. The fact that the Congo confined itself in its final submissions to asking the Court to render a decision based on its former Minister’s immunity vis-à-vis the Belgian domestic

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court does not justify the Court’s disregard of an inescapable premise underlying consideration of the issue of immunity. Here, the point is not to follow the order in which the issues were submitted to the Court for consideration but rather to respect the order which a strictly logical approach requires. Otherwise, we are impelled towards a situation where the Court is deciding whether or not there would be immunity in the event that the Belgian courts were to have jurisdiction…

[pp. 96-99 D.O. Al–Khasawneh] 4. A Minister for Foreign Affairs is entitled to immunity from enforcement when on official mission for the unhindered conduct of diplomacy would suffer if the case was otherwise, but the opening of criminal investigations against him can hardly be said by any objective criteria to constitute interference with the conduct of diplomacy. A faint–hearted or ultra–sensitive Minister may restrict his private travels or feel discomfort but this is a subjective element that must be discarded. The warrant issued against Mr. Yerodia goes further than a mere opening of investigation and may arguably be seen as an enforcement measure but it contained express language to the effect that it was not to be enforced if Mr. Yerodia was on Belgian territory on an official mission. In fact press reports not cited in the Memorials or the oral pleadings - suggest that he had paid a visit to Belgium after the issuance of the warrant and no steps were taken to enforce it. Significantly also the circulation of the international arrest warrant was not accompanied by a Red Notice requiring third States to take steps to enforce it (which only took place after Mr. Yerodia had left office) and had those States acted they would be doing so at their own risk. A breach of an obligation presupposes the existence of an obligation and in the absence of any evidence to suggest a Foreign Minister is entitled to absolute immunity, I cannot see why the Kingdom of Belgium, when we have regard to the terms of the warrant and the lack of an Interpol Red Notice was in breach of its obligations owed to the Democratic Republic of Congo.

5. A more fundamental question is whether high State officials are entitled to benefit from immunity even when they are accused of having committed exceptionally grave crimes recognized as such by the international community. In other words, should immunity become de facto impunity for criminal conduct as long as it was in pursuance of State policy? The Judgment sought to circumvent this morally embarrassing issue by recourse to an existing but artificially drawn distinction between immunity as a substantive defence on the one hand and immunity as a procedural defence on the other. The artificiality of this distinction can be

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gleaned from the ILC commentary to Article 7 of the Draft Code of Crimes against the Peace and Security of Mankind, which states: "The absence of any procedural immunity with respect to prosecution or punishment in appropriate judicial proceedings" - and it should not be forgotten that the draft was intended to apply to national or international courts - "is an essential corollary of the absence of any substantive immunity or defence. It would be paradoxical to prevent an individual from invoking his official position to avoid responsibility for a crime only to permit him to invoke this same consideration to avoid the consequences of this responsibility."

6. Having drawn this distinction, the Judgment then went on to postulate four cases where, in an attempt at proving that immunity and impunity are not synonymous, a Minister, and by analogy a high–ranking official, would be held personally accountable for: (a) Prosecution in his/her home State; (b) Prosecution in other States if his/her immunity had been waived; (c) After he/she leaves office except for official acts committed while in office; (d) Prosecution before an international court. This paragraph (Judgment, para. 61) is more notable for the things it does not say than for the things it does: As far as prosecution at home and waiver are concerned, clearly the problem arises when they do not take place. With regard to former high–ranking officials the question of impunity remains with regard to official acts, the fact that most grave crimes are definitionally State acts makes this more than a theoretical lacuna. Lastly with regard to existing international courts their jurisdiction ratione materiae is limited to the two cases of the former Yugoslavia and Rwanda and the future international court’s jurisdiction is limited ratione temporis by non–retroactivity as well as by the fact that primary responsibility for prosecution remains with States. The Judgment cannot dispose of the problem of impunity by referral to a prospective international criminal court or existing ones.

7. The effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance. Therefore when this hierarchically higher norm comes into conflict with the rules on immunity, it should prevail. Even if we are to speak in terms of reconciliation of the two sets of rules, this would suggest to me a much more restrictive interpretation of the immunities of high–ranking officials than the Judgment portrays.

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Incidentally, such a restrictive approach would be much more in consonance with the now firmly established move towards a restrictive concept of State immunity, a move that has removed the bar regarding the submission of States to jurisdiction of other States often expressed in the maxim par in parem non habet imperium. It is difficult to see why States would accept that their conduct with regard to important areas of their development be open to foreign judicial proceedings but not the criminal conduct of their officials.

8. In conclusion, this Judgment is predicated on two faulty premises. (a) That a Foreign Minister enjoys absolute immunity from both jurisdiction and enforcement of foreign States as opposed to only functional immunity from enforcement when on official mission, a preposition which is neither supported by precedent, opinio juris, legal logic or the writings of publicists. (b) That as international law stands today, there are no exceptions to the immunity of high– ranking State officials even when they are accused of grave crimes. While, admittedly, the readiness of States and municipal courts to admit of exceptions is still at a very nebulous stage of development, the situation is much more fluid than the Judgment suggests. I believe that the move towards greater personal accountability represents a higher norm than the rules on immunity and should prevail over the latter. In consequence, I am unable to join the majority view.

[p. 151 D.O. Van den Wyngaert] 23. ... [T]he International Court of Justice, by deciding that incumbent Foreign Ministers enjoy full immunity from foreign criminal jurisdiction (Judgment, para. 54), has reached a conclusion which has no basis in positive international law. Before reaching this conclusion, the Court should have satisfied itself of the existence of usus and opinio juris. There is neither State practice nor opinio juris establishing an international custom to this effect. There is no treaty on the subject and there is no legal opinion in favour of this proposition. The Court’s conclusion is reached without regard to the general tendency toward the restriction of immunity of the State officials (including even Heads of State), not only in the field of private and commercial law where the par in parem principle has become more and more restricted and deprived of its mystique, but also in the field of criminal law, when there are allegations of serious international crimes. Belgium may have acted contrary to international comity, but has not infringed international law. The Judgment is therefore based on flawed reasoning.

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Subjects of International Law

[pp. 157- 159 D.O. Van den Wyngaert] 29. The distinction between jurisdictional immunity and criminal responsibility of course exists in all legal systems in the world, but is not an argument in support of the proposition that incumbent Foreign Ministers cannot be subject to the jurisdiction of other States when they are suspected of war crimes and crimes against humanity. There are a host of sources, including the 1948 Genocide Convention26, the 1996 International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind27, the Statutes of the ad hoc international criminal tribunals28 and the Rome Statute for an International Criminal Court29. All these sources confirm the proposition contained in the Principle 3 of the Nuremberg principles30 which states: "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law".

30. The Congo argued that these sources only address substantive immunities, not procedural immunities and that therefore they offer no exception to the principle that incumbent Foreign Ministers are immune from the jurisdiction of other States. Although some authorities seem to support this view31, most authorities do not mention the distinction at all and even reject it.

31. Principle 3 of the Nuremberg principles (and the subsequent codifications of this principle), in addition to addressing the issue of (procedural or substantive) immunities, deals with the attribution of criminal acts to individuals. International crimes are indeed not

26

Convention on the Prevention and Suppression of the Crime of Genocide, Paris, 9 Dec. 1948, UNTS, Vol. 78, p. 277.

27

“Draft Code of Crimes against the Peace and Security of Mankind”, ILCR 1996, United Nations doc. A/51/10.

28

Statute of the International Tribunal for the former Yugoslavia, New York, 25 May 1993, ILM 1993, p. 1192; Statute of the International Tribunal for Rwanda, 8 Nov. 1994, ILM 1994, p. 1598.

29

Rome Statute of the International Criminal Court, Rome, 17 July 1998, ILM 1998, p. 999.

30

Nuremberg Principles, Geneva, 29 July 1950. Official Records of the General Assembly, Fifth Supplement No. 12, United Nations doc. A/1316 (1950).

31

See e.g., Principle 5 of The Princeton Principles on Universal Jurisdiction. The Commentary states that “There is an extremely important distinction, however, between ‘substantive’ and ‘procedural’ immunity”, but goes on by saying that “None of these statutes [Nuremberg, ICTY, ICTR] addresses the issue of procedural immunity.”

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51

committed by abstract entities, but by individuals who, in many cases, may act on behalf of the State32. Sir Arthur Watts very pertinently writes: "States are artificial legal persons: they can only act through the institutions and agencies of the State, which means, ultimately, through its officials and other individuals acting on behalf of the State. For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal State and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice."33 At the heart of Principle 3 is the debate about individual versus State responsibility, not the discussion about the procedural or substantive nature of the protection for government officials. This can only mean that, where international crimes such as war crimes and crimes against humanity are concerned, immunity cannot block investigations or prosecutions to such crimes, regardless of whether such proceedings are brought before national or before international courts. Article 7 of the International Law Commission’s 1996 Draft Code of Crimes against the Peace and Security of Mankind, which is intended to apply to both national and international criminal courts, only confirms this interpretation. In its Commentary to this Article, the International Law Commission states: "The absence of any procedural immunity with respect to prosecution or punishment in appropriate judicial proceedings is an essential corollary of the absence of any substantive immunity or defence. It would be paradoxical to prevent an individual from invoking his official position to avoid responsibility for a crime only to permit him to invoke this same consideration to avoid the consequences of this responsibility."34

33. In adopting the view that the non–impunity clauses in the relevant international instruments only address substantive, not procedural immunities, the International Court of Justice has adopted a purely doctrinal proposition, which is not based on customary or 32

See the Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg Trial Proceedings, Vol. 22, p. 466 “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

33

A. Watts, “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers”, Recueil des Cours de l’Académie de droit international, 1994, III, p. 82.

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conventional international law or on national practice and which is not supported by a substantial part of legal doctrine. It is particularly unfortunate that the International Court of Justice adopts this position without giving reasons.

[pp. 159-163 D.O. Van den Wyngaert] 34. I now turn to the Court’s proposition that immunities protecting an incumbent Foreign Minister under international law are not a bar to criminal prosecution in certain circumstances, which the Court enumerates. The Court mentions four cases where an incumbent or former Minister for Foreign Affairs can, despite his immunities under customary international law, be prosecuted: (1) he can be prosecuted in his own country; (2) he can be prosecuted in other States if the State whom he represents waives immunity; (3) he can be prosecuted after he ceases being a Minister for Foreign Affairs; and (4) he can be prosecuted before an international court (Judgment, para. 61). In theory, the Court may be right: immunity and impunity are not synonymous and the two concepts should therefore not be conflated. In practice, however, immunity leads to de facto impunity. All four cases mentioned by the Court are highly hypothetical.

35. Prosecution in the first two cases presupposes a willingness of the State which appointed the person as a Foreign Minister to investigate and prosecute allegations against him domestically or to lift immunity in order to allow another State to do the same. This, however, is the core of the problem of impunity: where national authorities are not willing or able to investigate or prosecute, the crime goes unpunished. And this is precisely what happened in the case of Mr. Yerodia. The Congo accused Belgium of exercising universal jurisdiction in absentia against an incumbent Foreign Minister, but it had itself omitted to exercise its jurisdiction in presentia in the case of Mr. Yerodia, thus infringing the Geneva Conventions and not complying with a host of United Nations resolutions to this effect. … 36. The third case mentioned by the Court in support of its proposition that immunity does not necessarily lead to impunity is where the person has ceased to be a Foreign Minister (Judgment, para. 61, "Thirdly"). In that case, he or she will no longer enjoy all of the immunities accorded by international law in other States. The Court adds that the lifting of 34

Draft Code of Crimes against the Peace and Security of Mankind, ILCR 1996, United Nations

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53

full immunity, in this case, is only for "acts committed prior or subsequent to his or her period of office". For acts committed during that period of office, immunity is only lifted "for acts committed during that period of office in a private capacity". Whether war crimes and crimes against humanity fall into this category the Court does not say35. It is highly regrettable that the International Court of Justice has not, like the House of Lords in the Pinochet case, qualified this statement. It could and indeed should have added that war crimes and crimes against humanity can never fall into this category. Some crimes under international law (e.g., certain acts of genocide and of aggression) can, for practical purposes, only be committed with the means and mechanisms of a State and as part of a State policy. They cannot, from that perspective, be anything other than "official" acts. Immunity should never apply to crimes under international law, neither before international courts nor national courts. I am in full agreement with the statement of Lord Steyn in the first Pinochet case, where he observed that: "It follows that when Hitler ordered the ‘final solution’ his act must be regarded as an official act deriving from the exercise of his functions as Head of State. That is where the reasoning of the Divisional Court inexorably leads."36 The International Court of Justice should have made it clearer that its Judgment can never lead to this conclusion and that such acts can never be covered by immunity.

37. The fourth case of "non–impunity" envisaged by the Court is that incumbent or former Foreign Ministers can be prosecuted before "certain international criminal courts, where they have jurisdiction" (Judgment, para. 61, "Fourthly"). The Court grossly overestimates the role an international criminal court can play in cases where the State on whose territory the crimes were committed or whose national is suspected of the crime are not willing to prosecute. The current ad hoc international criminal tribunals would only have jurisdiction over incumbent Foreign Ministers accused of war crimes and crimes against humanity in so far as the charges would emerge from a situation for which they are competent, i.e., the conflict in the former Yugoslavia and the conflict in Rwanda.

doc. A/51/10, at p. 41. 35

See also para. 55 of the Judgment, where the Court says that, from the perspective of his “full immunity”, no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an “official capacity” and those claimed to have been performed in a “private capacity”.

36

R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte, 25 Nov. 1998, [1998] 4 All ER 897, p. 945.

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The jurisdiction of an International Criminal Court, set up by the Rome Statute, is moreover conditioned by the principle of complementarity: primary responsibility for adjudicating war crimes and crimes against humanity lies with the States. The International Criminal Court will only be able to act if States which have jurisdiction are unwilling or unable genuinely to carry out investigation or prosecution (Art. 17). And even where such willingness exists, the International Criminal Court, like the ad hoc international tribunals, will not be able to deal with all crimes that come under its jurisdiction. The International Criminal Court will not have the capacity for that, and there will always be a need for States to investigate and prosecute core crimes37. These States include, but are not limited to, national and territorial States. Especially in the case of sham trials, there will still be a need for third States to investigate and prosecute. Not all international crimes will be justiciable before the permanent International Criminal Court. It will only be competent to try cases arising from criminal behaviour occurring after the entry into force of the Rome Statute. In addition, there is uncertainty as to whether certain acts of international terrorism or certain gross human rights violations in non–international armed conflicts would come under the jurisdiction of the Court. Professor Tomuschat has rightly observed that it would be a "fatal mistake" to assert that, in the absence of an international criminal court having jurisdiction, Heads of State and Foreign Ministers suspected of such crimes would only be justiciable in their own States, and nowhere else38.

38. My conclusion on this point is the following: the Court’s arguments in support of its proposition that immunity does not, in fact, amount to impunity, are very unconvincing.

[pp. 178-179 D.O. Van den Wyngaert] 72. Mr. Yerodia was never arrested, either when he visited Belgium officially in June 200039 or thereafter. Had it applied the only relevant

37

See for example the trial of four Rwandan citizens by a Criminal Court in Brussels: Cour d’Assises de l’Arrondissement Administratif de Bruxelles–Capitale, Arrêt du 8 juin 2001, not published.

38

C. Tomuschat, Intervention at the Institut de droit international's meeting in Vancouver, Aug. 2001, commenting on the draft resolution on Immunities from jurisdiction and Execution of Heads of State and of Government in International Law, and giving the example of Iraqi dictator Saddam Hussein: Report of the 13th Commission of the Institut de droit international, Vancouver, 2001, p. 94.

39

Mr. Yerodia’s visit to Belgium is not mentioned in the Judgment because the Parties were rather unclear on this point. Yet, it seems that Mr. Yerodia effectively visited Belgium on 17 June 2000. This was reported in the media (see the statement by the Minister for Foreign Affairs in De Standaard, 7 July 2000) and also in a question that was put in Parliament to the

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provision of conventional international law to the dispute, Article 21, paragraph 2, of the Special Missions Convention, the Court could not have reached its decision. According to this article, Foreign Ministers "when they take part in a special mission of the sending State, shall enjoy in the receiving State or in third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law". In the present dispute, this could only lead to the conclusion that there was no violation: the warrant was never executed, either in Belgium, or in third countries.

73. Belgium accepted, as a matter of international courtesy, that the warrant could not be executed against Mr. Yerodia were he to have visited Belgium officially. This was explicitly mentioned in the warrant: the warrant was not enforceable and was in fact not served on him or executed when Mr. Yerodia came to Belgium on an official visit in June 2001. Belgium thus respected the principle, contained in Article 21 of the Special Missions Convention, that is not a statement of customary international law but only of international courtesy40.

74. These are the only objective elements the Court should have looked at. The subjective elements, i.e., whether the warrant had a psychological effect on Mr. Yerodia or whether it was perceived as offensive by the Congo (cf. the term iniuria used by Maître Rigaux throughout his pleadings in October 200141 and the term capitis diminutio used by Maître Vergès during his pleadings in November 200042) was irrelevant for the dispute. The warrant only had a potential legal effect on Mr. Yerodia as a private person in case he would have visited Belgium privately, quod non.

75. In its dispositif (Judgment, para. 78 (2)), the Court finds that Belgium failed to respect the immunity from criminal jurisdiction and inviolability for incumbent Foreign Ministers. I have already explained why, in my opinion, there has been no infringement of the rules on Minister of Justice. See oral question put by Mr. Tony Van Parys to the Minister of Justice concerning « the political intervention by the Government in the proceedings against the Congolese Minister for Foreign Affairs, Mr. Yerodia [translation by the Registry] , Chambre des représentants de la Belgique, compte rendu intégral avec compte rendu analytique, Commission de la Justice, 14 November 2000, CRIV 50 COM 294, p. 12. Despite the fact that this fact is not, as such, recorded in the documents that were before the International Court of Justice, I believe the Court could have taken judicial notice of it. 40

See the statement of the International Law Commission’s Special Rapporteur, Yearbook of the International Law Commission (YILC), 1989, Vol. II (2), Part 2, para. 446.

41

CR 2001/5, p. 14.

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Subjects of International Law

immunity from criminal jurisdiction. I find it hard to see how, in addition (the Court using the word "and"), Belgium could have infringed the inviolability of Mr. Yerodia by the mere issuance of a warrant that was never enforced. The Judgment does not explain what is meant by the word "inviolability", and simply juxtaposes it to the word "immunity". This may give rise to confusion. Does the Court put the mere issuance of an order on the same footing as the actual enforcement of the order? Would this also mean that the mere act of investigating criminal charges against a Foreign Minister would be contrary to the principle of inviolability? Surely, in the case of diplomatic agents, who enjoy absolute immunity and inviolability under the 1961 Vienna Convention on Diplomatic Relations43, allegations of criminal offences may be investigated as long as the agent is not interrogated or served with an order to appear. This view is clearly stated by Jean Salmon44. Jonathan Brown notes that, in the case of a diplomat, the issuance of a charge or summons is probably contrary to the diplomat’s immunity, whereas its execution would be likely to infringe the agent’s inviolability45. If the Court’s dispositif were to be interpreted as to mean that mere investigations of criminal charges against Foreign Ministers would infringe their inviolability, the implication would be that Foreign Ministers enjoy greater protection than diplomatic agents under the Vienna Convention. This would clearly go beyond what is accepted under international law in the case of diplomats.

Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003

[p. 109-110] 30. Whereas the first question before the Court at the present stage of the case is whether the criminal proceedings currently pending in France entail a risk of irreparable prejudice to the right of the Congo to respect by France for the immunities of President Sassou Nguesso as Head of State, such as to require, as a matter of urgency, the indication of provisional measures; 42

144 CR 2000/32.

43

Convention on Diplomatic Relations, Vienna, 18 Apr. 1961, UNTS, Vol. 500, p. 95.

44

J. Salmon, Manuel de droit diplomatique, Brussels, Bruylant, 1994, p. 304.

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57

31. Whereas at the hearings France drew the Court’s attention to Article 656 of the French Code of Criminal Procedure, which provides that "the written deposition of the representative of a foreign power is to be requested through the Minister for Foreign Affairs", and continues by providing for the procedure to be followed "if this request is accepted", i.e., accepted by the foreign power; whereas France contends that this is the only means whereby President Sassou Nguesso, who according to France is included in the category of a "representative of a foreign power", might be approached to give evidence in the pending criminal proceedings, that his evidence thus could not be taken without the express agreement of the Congo, that while a request for a written deposition from President Sassou Nguesso under Article 656 has been sent by the investigating judge to the French Ministry of Foreign Affairs, it has been retained by the Ministry, and that the current proceedings therefore have not caused and cannot cause any damage to the Congo by way of breach of the immunities of President Sassou Nguesso;

32. Whereas the Congo questions whether Article 656 is applicable to a foreign Head of State, and also observes that if that procedure were followed to obtain the evidence of a person who would otherwise qualify to be cited as a témoin assisté (as is the case of President Sassou Nguesso, since he was mentioned in the complaint referred to in paragraph 10 above), the protection afforded by other Articles of the Code of Criminal Procedure to a témoin assisté would be lacking, with a consequent prejudice to the rights of the defence; whereas the Congo also emphasizes the fact that where a réquisitoire is made by the Procureur de la République against an unidentified person, as was the case in the proceedings now complained of, the investigating judge is free to interrogate any person whom he considers likely to be able to furnish evidence, and that therefore the possibility cannot be excluded that the judge might take the initiative to include President Sassou Nguesso in his investigation, particularly as President

45

J. Brown, “Diplomatic immunity: State Practice Under the Vienna Convention on Diplomatic Relations”, 37 ICLQ 1988, p. 53.

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Sassou Nguesso is mentioned in the documentation upon which the réquisitoire was based;

33. Whereas the Court notes in this respect the following statements by the Agent and the counsel of France: "In conformity with international law, French law embodies the principle of the immunity of foreign Heads of State ... There are no written rules deriving from any legislation relating to the immunities of States and their representatives. It is the jurisprudence of the French courts which, referring to customary international law and applying it directly, have asserted clearly and forcefully the principle of these immunities." "One thing must be clear at the outset: France in no way denies that President Sassou Nguesso enjoys, as a foreign Head of State, ‘immunities from jurisdiction, both civil and criminal’." "Until the present moment it has not been challenged, and it is certainly not seriously challengeable, that all the steps taken by the French courts in this particular case have been strictly in conformity with French law. They have respected the limits of their jurisdiction and have respected the immunities enshrined in French law in conformity with international law. Can it be supposed that in the future our courts would move away from respecting the law they are required to apply?" "We have simply stated what French law is; we have promised nothing, we have said that French law does not allow the prosecution of a foreign Head of State; that is not a promise, it is a statement of law. And also that French law subordinates the jurisdiction of the French courts over acts committed abroad to certain conditions. That too is not a promise, it is a statement of law. At the very most, but it would be somewhat pointless to do so, we might promise that the French courts will respect French law. But I think this might be taken for granted, and if some particular judicial decision, of which we have no example right now in our present case, were to exceed the limits set down by the law

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59

there would of course be means of recourse to remedy any errors which might have been made";

34. Whereas the Court is not now called upon to determine the compatibility with the rights claimed by the Congo of the procedure so far followed in France, but only the risk or otherwise of the French criminal proceedings causing irreparable prejudice to such claimed rights;

35. Whereas it appears to the Court, on the information before it, that as regards President Sassou Nguesso, there is at the present time no risk of irreparable prejudice, so as to justify the indication of provisional measures as a matter of urgency; and whereas neither is it established that any such risk exists as regards General Oba, Minister of the Interior of the Republic of the Congo, for whom the Congo also claims immunity in its Application;

*

4.3. International Organisations *

4.3.1. General Questions

*

4.3.2. Legal Position of Member States

*

4.3.3. Internal Law

*

*

4.3.4. "Implied Powers"

4.4. Other Subjects of International Law

4.5. Individuals

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 492-494] 75. Germany further contends that "the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the

60

Subjects of International Law

LaGrand brothers". Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground. Germany maintains that the right to be informed of the rights under Article 36, paragraph 1 (b), of the Vienna Convention, is an individual right of every national of a State party to the Convention who enters the territory of another State party. It submits that this view is supported by the ordinary meaning of the terms of Article 36, paragraph 1 (b), of the Vienna Convention, since the last sentence of that provision speaks of the "rights" under this subparagraph of "the person concerned", i.e., of the foreign national arrested or detained. Germany adds that the provision in Article 36, paragraph 1 (b), according to which it is for the arrested person to decide whether consular notification is to be provided, has the effect of conferring an individual right upon the foreign national concerned. In its view, the context of Article 36 supports this conclusion since it relates to both the concerns of the sending and receiving States and to those of individuals. According to Germany, the travaux préparatoires of the Vienna Convention lend further support to this interpretation. In addition, Germany submits that the "United Nations Declaration on the human rights of individuals who are not nationals of the country in which they live," adopted by General Assembly resolution 40/144 on 13 December 1985, confirms the view that the right of access to the consulate of the home State, as well as the information on this right, constitute individual rights of foreign nationals and are to be regarded as human rights of aliens.

76. The United States questions what this additional claim of diplomatic protection contributes to the case and argues that there are no parallels between the present case and cases of diplomatic protection involving the espousal by a State of economic claims of its nationals. The United States maintains that the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the claims of its nationals through diplomatic protection, are legally different concepts. The United States contends, furthermore, that rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular

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61

assistance. It maintains that the treatment due to individuals under the Convention is inextricably linked to and derived from the right of the State, acting through its consular officer, to communicate with its nationals, and does not constitute a fundamental right or a human right. The United States argues that the fact that Article 36 by its terms recognizes the rights of individuals does not determine the nature of those rights or the remedies required under the Vienna Convention for breaches of that Article. It points out that Article 36 begins with the words "[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State," and that this wording gives no support to the notion that the rights and obligations enumerated in paragraph 1 of that Article are intended to ensure that nationals of the sending State have any particular rights or treatment in the context of a criminal prosecution. The travaux préparatoires of the Vienna Convention according to the United States, do not reflect a consensus that Article 36 was addressing immutable individual rights, as opposed to individual rights derivative of the rights of States.

77. 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.

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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 1, 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.

78. At the hearings, Germany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right, but has today assumed the character of a human right. In consequence, Germany added, "the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative". The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.

[p. 523-524 S.O. Shi] 15. The result of the debate was the adoption of the twenty States' amendment with the insertion of the words "if he so requests" at the beginning of the subparagraph. The last sentence of Article 36, paragraph 1 (b), i.e., the provision that the competent authorities of the receiving State "shall inform the person concerned without delay of his rights" (United Nations Conference on Consular Relations, 1963, Vol. 1, pp. 336–343) was inserted belatedly as a compromise between the aforesaid two opposing views. Thus, it is not possible to conclude from the negotiating history that Article 36, paragraph 1 (b), was intended by the negotiators to create individual rights. Moreover, if one keeps in mind that the general tone and thrust of the debate of the entire Conference concentrated on the consular functions and their practicability, the better view would be that no creation of any individual rights independent of rights of States was envisaged by the Conference.

[pp. 536 D.O. Oda] 23. ... I see no convincing argument to support the determination of the Court that "Article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded the sending State, and ... consequently the reference to 'rights'

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63

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" (Judgment, para. 89).

24. I shall take the liberty of expressing my puzzlement at the reason for and relevance of the Court's reference in the Judgment to Article 36, paragraph 1 (c), of the Convention in connection with the rights of a detained person. I believe that this provision was included in the Convention simply to provide for the situation in which an arrested foreign national waives consular notification in order to prevent his criminal conduct or even his presence in a foreign country from becoming known in his home country; that provision may not have any further significance.

[p. 537 D.O. Oda] 27. I am not convinced of the correctness of the Court's holding that the Vienna Convention on Consular Relations grants to foreign individuals any rights beyond those which might necessarily be implied by the obligations imposed on States under that Convention. In addition, I cannot but think that the Court holds the view that the Vienna Convention on Consular Relations grants more extensive protection and greater or broader individual rights to foreign nationals (in this case, German nationals in the United States) than would be enjoyed by nationals in their home countries (in this case, Americans in the United States). If the Vienna Convention on Consular Rights is to be interpreted as granting rights to individuals, those rights are strictly limited to those corresponding to the obligations borne by the States under the Convention and do not include substantive rights of the individual, such as the rights to life, property, etc. I find the Judgment devoid of any convincing explanation of this point.

5. THE UNITED NATIONS 5.1. General Questions

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 152] 35. … As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legal Consequences for States of the Continued Presence of South

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63

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" (Judgment, para. 89).

24. I shall take the liberty of expressing my puzzlement at the reason for and relevance of the Court's reference in the Judgment to Article 36, paragraph 1 (c), of the Convention in connection with the rights of a detained person. I believe that this provision was included in the Convention simply to provide for the situation in which an arrested foreign national waives consular notification in order to prevent his criminal conduct or even his presence in a foreign country from becoming known in his home country; that provision may not have any further significance.

[p. 537 D.O. Oda] 27. I am not convinced of the correctness of the Court's holding that the Vienna Convention on Consular Relations grants to foreign individuals any rights beyond those which might necessarily be implied by the obligations imposed on States under that Convention. In addition, I cannot but think that the Court holds the view that the Vienna Convention on Consular Relations grants more extensive protection and greater or broader individual rights to foreign nationals (in this case, German nationals in the United States) than would be enjoyed by nationals in their home countries (in this case, Americans in the United States). If the Vienna Convention on Consular Rights is to be interpreted as granting rights to individuals, those rights are strictly limited to those corresponding to the obligations borne by the States under the Convention and do not include substantive rights of the individual, such as the rights to life, property, etc. I find the Judgment devoid of any convincing explanation of this point.

5. THE UNITED NATIONS 5.1. General Questions

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 152] 35. … As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legal Consequences for States of the Continued Presence of South

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The United Nations

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). In view of the foregoing, the Court cannot see any reason why that presumption is to be rebutted in the present case.

5.2. General Assembly

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 151-152] 31. … The Court further notes that, on 20 October 2003, the Tenth Emergency Special Session of the General Assembly was reconvened on the same basis as in 1997 (see the statements by the representatives of Palestine and Israel, A/ES–10/PV.21, pp. 2 and 5), after the rejection by the Security Council, on 14 October 2003, again as a result of the negative vote of a permanent member, of a draft resolution concerning the construction by Israel of the wall in the Occupied Palestinian Territory. The Court considers that the Security Council again failed to act as contemplated in resolution 377 A (V). It does not appear to the Court that the situation in this regard changed between 20 October 2003 and 8 December 2003, since the Council neither discussed the construction of the wall nor adopted any resolution in that connection. Thus, the Court is of the view that, up to 8 December 2003, the Council had not reconsidered the negative vote of 14 October 2003. It follows that, during that period, the Tenth Emergency Special Session was duly reconvened and could properly be seised, under resolution 377 A (V), of the matter now before the Court.

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32. The Court would also emphasize that, in the course of this Emergency Special Session, the General Assembly could adopt any resolution falling within the subject– matter for which the Session had been convened, and otherwise within its powers, including a resolution seeking the Court’s opinion. It is irrelevant in that regard that no proposal had been made to the Security Council to request such an opinion.

33. Turning now to alleged further procedural irregularities of the Tenth Emergency Special Session, the Court does not consider that the "rolling" character of that Session, namely the fact of its having been convened in April 1997 and reconvened 11 times since then, has any relevance with regard to the validity of the request by the General Assembly. The Court observes in that regard that the Seventh Emergency Special Session of the General Assembly, having been convened on 22 July 1980, was subsequently reconvened four times (on 20 April 1982, 25 June 1982, 16 August 1982 and 24 September 1982), and that the validity of resolutions or decisions of the Assembly adopted under such circumstances was never disputed. Nor has the validity of any previous resolutions adopted during the Tenth Emergency Special Session been challenged.

34. The Court also notes the contention by Israel that it was improper to reconvene the Tenth Emergency Special Session at a time when the regular Session of the General Assembly was in progress. 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.

35. Finally, the Tenth Emergency Special Session appears to have been convened in accordance with Rule 9 (b) of the Rules of Procedure of the General Assembly, and the relevant meetings have been convened in pursuance of the applicable rules. As the Court stated in its Advisory Opinion of 21 June 1971 concerning the Legal

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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). In view of the foregoing, the Court cannot see any reason why that presumption is to be rebutted in the present case.

[pp. 252 S.O. Elaraby] 2.3. … The Court, moreover, has previously held, in the Certain

Expenses case, that the decisions of the General Assembly on "important questions" under Article 18, "have dispositive force and effect" (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 163). The legal force and effect of a General Assembly resolution adopted by the General Assembly "within the framework of its competence" is therefore well established in the Court’s jurisprudence. On that basis, it is submitted that two conclusions appear imperative: (a) the United Nations is under an obligation to pursue the establishment of an independent Palestine, a fact which necessitates that the General Assembly’s special legal responsibility not lapse until the achievement of this objective; (b) the transitional period referred to in the Partition Resolution serves as a legal nexus with the Mandate. The notion of a transitional period carrying the responsibilities emanating from the Mandate to the present is a political reality, not a legal fiction, and finds support in the dicta of the Court, in particular, that former mandated territories are the "sacred trust of civilization" and "cannot be annexed". The stream of General Assembly and Security Council resolutions on various aspects of the question of Palestine provides cogent proof that this notion of a transitional period is generally, albeit implicitly, accepted.

*

5.3. Security Council

*

5.4. Secretary–General

*

5.5. Other Organs

5.6. Relationship between different Organs

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 148-150] 25. The Court has already indicated that the subject of the present request for an advisory opinion falls within the competence of the General Assembly under the Charter (see paragraphs 15–17 above). However, Article 12, paragraph 1, of the Charter provides that: "While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests." A request for an advisory opinion is not in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation". It has however been argued in this case that the adoption by the General Assembly of resolution ES–10/14 was ultra vires as not in accordance with Article 12. The Court thus considers that it is appropriate for it to examine the significance of that Article, having regard to the relevant texts and the practice of the United Nations.

26. Under Article 24 of the Charter the Security Council has "primary responsibility for the maintenance of international peace and security". In that regard it can impose on States "an explicit obligation of compliance if for example it issues an order or command ... under Chapter VII" and can, to that end, "require enforcement by coercive action" (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, I.C.J. Reports 1962, p. 163). However, 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

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recommend measures while the Security Council is dealing with the same matter unless the Council requests it to do so." (I.C.J. Reprts 1962, p. 163.)

27. As regards the practice of the United Nations, both the General Assembly and the Security Council initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council’s agenda. Thus the Assembly during its fourth session refused to recommend certain measures on the question of Indonesia, on the ground, inter alia, that the Council remained seised of the matter (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, para. 118). As for the Council, on a number of occasions it deleted items from its agenda in order to enable the Assembly to deliberate on them (for example, in respect of the Spanish question (Official Records of the Security Council, First Year: Second Series, No. 21, 79th Meeting, 4 November 1946, p. 498), in connection with incidents on the Greek border (Official Records of the Security Council, Second Year, No. 89, 202nd Meeting, 15 September 1947, pp. 2404–2405) and in regard to the Island of Taiwan (Formosa) (Official Records of the Security Council, Fifth Year, No. 48, 506th Meeting, 29 September 1950, p. 5)). In the case of the Republic of Korea, the Council decided on 31 January 1951 to remove the relevant item from the list of matters of which it was seised in order to enable the Assembly to deliberate on the matter (Official Records of the Security Council, Sixth Year, S/PV.531, 531st Meeting, 31 January 1951, pp. 11– 12, para. 57). However, this interpretation of Article 12 has evolved subsequently. Thus the General Assembly deemed itself entitled in 1961 to adopt recommendations in the matter of the Congo (resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolution 1913 (XVIII)) while those cases still appeared on the Council’s agenda, without the Council having adopted any recent resolution concerning them. In response to a question posed by Peru during the Twenty–third session of the General Assembly, the Legal Counsel of the United Nations confirmed

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that the Assembly interpreted the words "is exercising the functions" in Article 12 of the Charter as meaning "is exercising the functions at this moment" (Twenty–third General Assembly, Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9). 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.

28. The Court considers that the accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter.

[pp. 150-151] 29. It has however been contended before the Court that the present

request for an advisory opinion did not fulfil the essential conditions set by resolution 377 A (V), under which the Tenth Emergency Special Session was convened and has continued to act. In this regard, it has been said, first, that "The Security Council was never seised of a draft resolution proposing that the Council itself should request an advisory opinion from the Court on the matters now in contention", and, that specific issue having thus never been brought before the Council, the General Assembly could not rely on any inaction by the Council to make such a request. Secondly, it has been claimed that, in adopting resolution 1515 (2003), which endorsed the "Roadmap", before the adoption by the General Assembly of resolution ES–10/14, the Security Council continued to exercise its responsibility for the maintenance of international peace and security and that, as a result, the General Assembly was not entitled to act in its place. The validity of the procedure followed by the Tenth Emergency Special Session, especially the Session’s "rolling character" and the fact that its meeting was convened to deliberate on the request for the advisory opinion at the same time as the General Assembly was meeting in regular session, has also been questioned.

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30. The Court would recall that resolution 377 A (V) states that: "if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures ..." The procedure provided for by that resolution is premised on two conditions, namely that the Council has failed to exercise its primary responsibility for the maintenance of international peace and security as a result of a negative vote of one or more permanent members, and that the situation is one in which there appears to be a threat to the peace, breach of the peace, or act of aggression. The Court must accordingly ascertain whether these conditions were fulfilled as regards the convening of the Tenth Emergency Special Session of the General Assembly, in particular at the time when the Assembly decided to request an advisory opinion from the Court.

31. In the light of the sequence of events described in paragraphs 18 to 23 above, the Court observes that, at the time when the Tenth Emergency Special Session was convened in 1997, the Council had been unable to take a decision on the case of certain Israeli settlements in the Occupied Palestinian Territory, due to negative votes of a permanent member; and that, as indicated in resolution ES–10/2 (see paragraph 19 above), there existed a threat to international peace and security. The Court further notes that, on 20 October 2003, the Tenth Emergency Special Session of the General Assembly was reconvened on the same basis as in 1997 (see the statements by the representatives of Palestine and Israel, A/ES–10/PV.21, pp. 2 and 5), after the rejection by the Security Council, on 14 October 2003, again as a result of the negative vote of a permanent member, of a draft resolution concerning the construction by Israel of the wall in the Occupied Palestinian Territory. The Court considers that the Security Council again failed to act as contemplated in resolution 377 A (V). It does not appear to the Court that the situation in this regard changed between

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20 October 2003 and 8 December 2003, since the Council neither discussed the construction of the wall nor adopted any resolution in that connection. Thus, the Court is of the view that, up to 8 December 2003, the Council had not reconsidered the negative vote of 14 October 2003. It follows that, during that period, the Tenth Emergency Special Session was duly reconvened and could properly be seised, under resolution 377 A (V), of the matter now before the Court.

32. The Court would also emphasize that, in the course of this Emergency Special Session, the General Assembly could adopt any resolution falling within the subject– matter for which the Session had been convened, and otherwise within its powers, including a resolution seeking the Court’s opinion. It is irrelevant in that regard that no proposal had been made to the Security Council to request such an opinion.

[pp. 223-224 S.O. Kooijmans] 14. I fully share the view of the Court that the adoption of resolution ES–10/14 was not ultra vires since it did not contravene the provision of Article 12, paragraph 1, of the Charter; nor did it fail to fulfil the essential conditions set by the Uniting for Peace resolution (res. 377 A (V)) for the convening of an Emergency Special Session.

15. I doubt, however, whether it is possible to describe the practice of the political organs of the United Nations with respect to the interpretation of Article 12, paragraph 1, of the Charter without taking into account the effect of the Uniting for Peace resolution on this interpretation. In the Opinion, the Court deals with resolution 377 A (V) as a separate item and merely in relation to its procedural requirements. In my opinion this resolution also had a more substantive effect, namely with regard to the interpretation of the relationship between the competences of the Security Council and the General Assembly respectively, in the field of international peace and security and has certainly expedited the development of the interpretation of the condition, contained in Article 12, paragraph 1, namely that the Assembly shall not make a recommendation with regard to a dispute or situation while the Security Council is exercising its functions in respect of such dispute or situation (emphasis added).

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16. This effect is also recognized in doctrine. "The adoption of the ‘Uniting for Peace’ resolution … could not fail to have an effect on the weight to be given to the restriction in Article 12, paragraph 1.” (Philippe Manin, in J. P. Cot, La Charte des Nations Unies, 2e éd., 1981, p. 298 [translation by the Registry]; see also E. de Wet, The Chapter VII Powers of the United Nations Security Council, 2004, p. 46.) In actual practice the adoption of the Uniting for Peace resolution has contributed to the interpretation that, if a veto cast by a permanent member prevents the Security Council from taking a decision, the latter is no longer considered to be exercising its functions within the meaning of Article 12, paragraph 1. And the fact that a veto had been cast when the Security Council voted on a resolution dealing with the construction of the wall is determinative for the conclusion that the Security Council was no longer exercising its functions under the Charter with respect to the construction of the wall. In the present case, therefore, the conclusion that resolution ES–10/14 did not contravene Article 12, paragraph 1, of the Charter cannot be dissociated from the effect resolution 377 A (V) has had on the interpretation of that provision.

17. That such practice is accepted by both Assembly and Security Council also with regard to the procedural requirements of resolution 377 A (V) is borne out by the fact that none of the Council’s members considered that the reconvening of the Assembly in Emergency Special Session on 20 October 2003 was unconstitutional and that the adoption of the resolution demanding that Israel stop and reverse the construction of the wall was therefore ultra vires. In this respect it is telling that this resolution (res. ES–10/13) was tabled as a compromise by the Presidency of the European Union, among whose members were two permanent and two non– permanent members of the Security Council, less than a week after a draft resolution on the same subject had been vetoed in the Council.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004 [pp. 341-342 S.O. Higgins] 19. Because I am of the firm view that grounds ratione personae should not have been chosen for the disposition of this case (for reasons elaborated in the joint declaration of seven judges), it is not my intention here to offer my own views as to the arguments that the Court advances to support its findings on this ground. It suffices to say that, while General Assembly resolution 55/12 of 1 November 2000, admitting the Federal

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Republic of Yugoslavia as a new State, necessarily clarifies the legal situation thereafter, it remains debatable whether "from the vantage point from which the Court now looks at the legal situation", the "new development in 2000 ... has clarified the thus far amorphous legal situation concerning the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations" at the relevant time (Judgment, para. 79).

20. It was said by Judge Lachs in 1992 that, while the various major organs of the United Nations do each have their various roles to play in a situation or dispute, they should act: "in harmony − though not, of course, in concert − and that each should perform its functions with respect to a situation or dispute, different aspects of which appear on the agenda of each, without prejudicing the exercise of the other’s powers" (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, separate opinion of Judge Lachs, I.C.J. Reports 1992, p. 27). The Court, in purporting to find an ex post facto clarification of the situation as it was in 1992-2000, notwithstanding that the General Assembly and Security Council had in all deliberation felt the objectives of the United Nations were best met by legal ambiguity, seems to have ignored that wise dictum.

5.7. Interpretation of the Charter

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 505-506] 108. The Court finally needs to consider whether Article 94 of the United Nations Charter precludes attributing binding effect to orders indicating provisional measures. That Article reads as follows: "1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or

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decide upon measures to be taken to give effect to the judgment." The question arises as to the meaning to be attributed to the words "the decision of the International Court of Justice" in paragraph 1 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 1 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.

5.8. Maintenance of International Peace and Security

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 200-201] 161. 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 of 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.

162. The Court has reached the conclusion that the construction of the wall by Israel in the Occupied Palestinian Territory is contrary to international law and has stated the

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legal consequences that are to be drawn from that illegality. The Court considers itself bound to add that this construction must be placed in a more general context. Since 1947, the year when General Assembly resolution 181 (II) was adopted and the Mandate for Palestine was terminated, there has been a succession of armed conflicts, acts of indiscriminate violence and repressive measures on the former mandated territory. The Court would emphasize that both Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law, one of the paramount purposes of which is to protect civilian life. Illegal actions and unilateral decisions have been taken on all sides, whereas, in the Court’s view, this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973). The "Roadmap" approved by Security Council resolution 1515 (2003) represents the most recent of efforts to initiate negotiations to this end. The Court considers that it has a duty to draw the attention of the General Assembly, to which the present Opinion is addressed, to the need for these 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, existing side by side with Israel and its other neighbours, with peace and security for all in the region.

5.9. Trusteeship System

Legal Consequences of the Construction Of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004 [pp. 250-251 S.O. Elaraby] 2.2. The Court has considered the legal nature of mandated

territories in both 1950 (International Status of South West Africa, Advisory Opinion), and in 1971 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion), and laid down both the conceptual philosophy and the legal parameters for defining the legal status of former mandated territories. The dicta of the Court emphasized the special

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responsibility of the international community. It is to be noted that, in the setting up of the mandates system, the Court held that "two principles were considered to be of paramount importance: the principle of nonannexation and the principle that the well-being and development of such peoples form ‘a sacred trust of civilization’" (I.C.J. Reports 1950, p. 131; emphasis added). The two fundamental principles enunciated by the Court in 1950 apply to all former mandated territories which have not gained independence. They remain valid today for the Occupied Palestinian Territory. The territory cannot be subject to annexation by force and the future of the Palestinian people, as "a sacred trust of civilization", is the direct responsibility and concern of the United Nations.

*

5.10. Specialized Agencies

*

5.11. United Nations Administrative Tribunal

*

5.12. Regional Arrangements

*

5.13. Privileges and Immunities

5.14. Membership

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004

[pp. 305-306] 64. … In fact, it is the view of the Court that the legal situation that obtained within the United Nations during that eight-year period concerning the status of the Federal Republic of Yugoslavia, after the break-up of the Socialist Federal Republic of Yugoslavia, remained ambiguous and open to different assessments. This was due, inter alia, to the absence of an authoritative determination by the competent organs of the United Nations defining clearly the legal status of the Federal Republic of Yugoslavia vis-à-vis the United Nations.

65. Within the United Nations, three different positions were taken on the issue of the legal status of the Federal Republic of Yugoslavia. In the first place, there was the position taken by the two political organs concerned. The Security Council, as an organ

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of the United Nations which under the Charter is vested with powers and responsibilities as regards membership, stated in its resolution 777 (1992) of 19 September 1992 that it "consider[ed] that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist" and that it "[c]onsider[ed] that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the Socialist Federal Republic of Yugoslavia in the United Nations".

66. The other organ which under the Charter is vested with powers and responsibilities as regards membership in the United Nations is the General Assembly. In the wake of this Security Council resolution, and especially in light of its recommendation to the General Assembly that "it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations", the Assembly took the position in resolution 47/1 of 22 September 1992 that it "[c]onsider[ed] that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations". On that basis, it "decide[d] that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations".

67. While it is clear from the voting figures (see paragraphs 59 and 60 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 visà-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.

[pp. 307-309] 69. Secondly, the Federal Republic of Yugoslavia, for its part, maintained its claim that it continued the legal personality of the Socialist Federal Republic of Yugoslavia. This claim had been clearly stated in the official Note of

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27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations addressed to the Secretary-General of the United Nations (see paragraph 57). It was sustained by the Applicant throughout the period from 1992 to 2000 (see, for example, Memorial, Part III, paras. 3.1.3. and 3.1.17.).

70. Thirdly, another organ that came to be involved in this problem was the Secretariat of the United Nations. In the absence of any authoritative determination on the legal status of the Federal Republic of Yugoslavia within, or vis-à-vis, the United Nations, the Secretariat, as the administrative organ of the Organization, simply continued to keep to the practice of the status quo ante that had prevailed up to the break-up of the Socialist Federal Republic of Yugoslavia in 1992, pending such a determination. This is illustrated by the practice of the Secretariat in its role in the preparation of the budget of the Organization for consideration and approval by the General Assembly. The "considered view of the United Nations Secretariat regarding the practical consequences of the adoption by the General Assembly of resolution 47/1" (United Nations doc. A/47/485), issued by the Under-Secretary-General and Legal Counsel on 29 September 1992 (see paragraph 62 above), should probably also be understood in the context of this continuation of the status quo ante.

71. By the same token, the position of the Secretary-General as reflected in the "Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties", prepared by the Treaty Section of the Office of Legal Affairs and published at the beginning of 1996, was scrupulously to maintain the approach of following the existing practice on the basis of the status quo ante. As originally issued, that Summary contained a paragraph (paragraph 297) on the practice of the Secretariat on the breakup 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". The example was given of the Union of Soviet Socialist Republics, and the text continued:

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"The same applies to the Federal Republic of Yugoslavia (Serbia and Montenegro), which remains as the predecessor State upon separation of parts of the territory of the former Yugoslavia. General Assembly resolution 47/1 of 22 September 1992, to the effect that the Federal Republic of Yugoslavia could not automatically continue the membership of the former Yugoslavia in the United Nations ..., was adopted within the framework of the United Nations and the context of the Charter of the United Nations, and not as an indication that the Federal Republic of Yugoslavia was not to be considered a predecessor State." (United Nations doc. ST/LEG/8; see also I.C.J. Reports 2003, p. 19, para. 38.) This passage could be read as lending support to the claims of the Federal Republic of Yugoslavia. It was deleted by the Secretariat in response to the objections raised by a number of States that the text was contrary to the relevant Security Council and General Assembly resolutions and the pertinent opinions of the Arbitration Commission of the International Conference for Peace in Yugoslavia (see United Nations docs. A/50/910-S/1996/231, A/51/95-S/1996/251, A/50/928-S/1996/263 and A/50/930-S/1996/260).

72. A further example of the application of this approach is afforded by the way in which the Secretariat treated the deposit of the declaration by the Federal Republic of Yugoslavia recognizing the compulsory jurisdiction of the International Court of Justice dated 25 April 1999. On 30 April 1999 the Secretary-General issued a Depositary

Notification

informing

(C.N.311.1999.TREATIES-1).

Although

Member on

States

27 May

of

1999

that the

deposit Permanent

Representatives of Bosnia and Herzegovina, Croatia, Slovenia and the former Yugoslav Republic of Macedonia sent a letter to the Secretary-General, questioning the validity of the deposit of the declaration recognizing the compulsory jurisdiction of the International Court of Justice by the Federal Republic of Yugoslavia (United Nations doc. A/53/992), the Secretariat adhered to its past practice respecting the status quo ante and simply left the matter there.

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73. To sum up, all these events testify to the rather confused and complex state of affairs that obtained within the United Nations surrounding the issue of the legal status of the Federal Republic of Yugoslavia in the Organization during this period. It is against this background that the Court, in its Judgment of 3 February 2003, referred to the "sui generis position which the FRY found itself in" during the period between 1992 to 2000.

74. 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. The Court did not commit itself to a definitive position on the issue of the legal status of the Federal Republic of Yugoslavia in relation to the Charter and the Statute in its pronouncements in incidental proceedings, in the cases involving this issue which came before the Court during this anomalous period.

[pp. 309-311] 75. This situation, however, came to an end with a new development in 2000. On 24 September 2000, Mr. Koštunica was elected President of the Federal Republic of Yugoslavia. In that capacity, on 27 October 2000 he sent a letter to the Secretary-General requesting admission of the Federal Republic of Yugoslavia to membership in the United Nations, in the following terms: "In the wake of fundamental democratic changes that took place in the Federal Republic of Yugoslavia, in the capacity of President, I have the honour to request the admission of the Federal Republic of Yugoslavia to membership in the United Nations in light of the implementation of Security Council resolution 777 (1992)." (United Nations doc. A/55/528-S/2000/1043; emphasis added.)

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76. Acting upon this application by the Federal Republic of Yugoslavia for membership in the United Nations, the Security Council on 31 October 2000 "recommend[ed] to the General Assembly that the Federal Republic of Yugoslavia be admitted to membership in the United Nations" (United Nations doc. S/RES/1326). On 1 November 2000, the General Assembly, by resolution 55/12, "[h]aving received the recommendation of the Security Council of 31 October 2000" and "[h]aving considered the application for membership of the Federal Republic of Yugoslavia", decided to "admit the Federal Republic of Yugoslavia to membership in the United Nations".

77. As the letter of the President of the Federal Republic of Yugoslavia quoted above demonstrates, this action on the part of the Federal Republic of Yugoslavia signified that it had finally decided to act on Security Council resolution 777 (1992) by aligning itself with the position of the Security Council as expressed in that resolution. Furthermore, the Security Council confirmed its own position by taking steps for the admission of the Federal Republic of Yugoslavia as a new Member of the United Nations, which, when followed by corresponding steps taken by the General Assembly, completed the procedure for the admission of a new Member under Article 4 of the Charter, rather than pursuing any course involving recognition of continuing membership of the Federal Republic of Yugoslavia in the United Nations.

78. This new development effectively put an end to the sui generis position of the Federal Republic of Yugoslavia within the United Nations, which, as the Court has observed in earlier pronouncements, had been fraught with "legal difficulties" throughout the period between 1992 and 2000 (cf. 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. 14, para. 18). The Applicant thus has the status of membership in the United Nations as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared; there

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was in 2000 no question of restoring the membership rights of the Socialist Federal Republic of Yugoslavia for the benefit of the Federal Republic of Yugoslavia. At the same time, it became clear that the sui generis position of the Applicant could not have amounted to its membership in the Organization.

79. In the view of the Court, the significance of this new development in 2000 is that it has clarified the thus far amorphous legal situation concerning the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations. It is in that sense that the situation that the Court now faces in relation to Serbia and Montenegro is manifestly different from that which it faced in 1999. If, at that time, the Court had had to determine definitively the status of the Applicant vis-à-vis the United Nations, its task of giving such a determination would have been complicated by the legal situation, which was shrouded in uncertainties relating to that status. However, from the vantage point from which the Court now looks at the legal situation, and in light of the legal consequences of the new development since 1 November 2000, the Court is led to the conclusion that Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the present proceedings before the Court on 29 April 1999.

[p. 357-358 S.O. Elaraby] 13. The Court has now characterized the FRY’s sui generis position as one that "could not have amounted to its membership in the organization" (Judgment, para. 78) and held that the FRY’s admission to the United Nations in 2000 "did not have and could not have had, the effect of dating back to the time when the Social Federal Republic of Yugoslavia broke up and disappeared" (ibid.). This, in my view, lacks a solid legal basis. Whereas the Security Council and General Assembly were acting in a political capacity when the relevant resolutions were adopted, the Court, throughout the various phases of the cases related to the former Yugoslavia, should have consistently stated and applied the applicable law. This approach would have yielded an outcome consistent with the law of the Charter and the established practice of the United Nations and, I believe, would have led the Court to find that the FRY was a member of the United Nations when, in 1999, it filed its

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application in the instant case. Therefore, the Court should have concluded that it was open to the FRY under Article 35, paragraph 1.

[p. 383-384 S.O. Kreća] 20. The qualifications of the status of the Applicant in the United Nations as "sui generis membership", "de facto working status", etc., are deprived of legal substance in terms of the Charter. The Charter of the United Nations does not recognize such forms of "membership" or "non-membership" or a mixture thereof. These syntagmas constitute rather an attempt − based on analogy with membership in terms of the Charter − of a notional conceptualization of observer status of a non-Member based on Article 2, paragraph 6, and Article 35, paragraph 2, of the Charter, or of the status of non-State entities, such as national liberation movements, or of observer status of regional organizations and groups of States pursuant to Article 52, paragraph 1, of the Charter of the United Nations. In the qualitative sense, the meaning of the syntagmas such as "sui generis membership" or "de facto working status" would mean, in fact, reduced membership rights or the privileged position of some non-Members. Such a meaning can hardly be brought in accordance either with the provisions of the Charter of the United Nations which regulate membership rights and obligations, or with the fundamental principle of sovereign equality of States enshrined in Article 2, paragraph 1, of the Charter of the United Nations. The provisions of the Charter, as far as the relationship of the Organization vis-à-vis States is concerned, have been formulated in terms of the dichotomy Member States/non-Member States. Tertium quid simply does not exist. Chapter II of the United Nations Charter (Membership) points out only the division into the original Members of the United Nations and the subsequently admitted Members of the Organization, a division which has no substantive meaning in terms of membership rights and duties, but only that of historical record. Article 2 of the Charter of the United Nations, setting out the principles on which the Organization and its Members are based and shall act, provides in paragraph 1 that "[t]he Organization is based on the principle of the sovereign equality of all its Members".

6. USE OF FORCE AND RELATED PROBLEMS 6.1. Use of Force

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application in the instant case. Therefore, the Court should have concluded that it was open to the FRY under Article 35, paragraph 1.

[p. 383-384 S.O. Kreća] 20. The qualifications of the status of the Applicant in the United Nations as "sui generis membership", "de facto working status", etc., are deprived of legal substance in terms of the Charter. The Charter of the United Nations does not recognize such forms of "membership" or "non-membership" or a mixture thereof. These syntagmas constitute rather an attempt − based on analogy with membership in terms of the Charter − of a notional conceptualization of observer status of a non-Member based on Article 2, paragraph 6, and Article 35, paragraph 2, of the Charter, or of the status of non-State entities, such as national liberation movements, or of observer status of regional organizations and groups of States pursuant to Article 52, paragraph 1, of the Charter of the United Nations. In the qualitative sense, the meaning of the syntagmas such as "sui generis membership" or "de facto working status" would mean, in fact, reduced membership rights or the privileged position of some non-Members. Such a meaning can hardly be brought in accordance either with the provisions of the Charter of the United Nations which regulate membership rights and obligations, or with the fundamental principle of sovereign equality of States enshrined in Article 2, paragraph 1, of the Charter of the United Nations. The provisions of the Charter, as far as the relationship of the Organization vis-à-vis States is concerned, have been formulated in terms of the dichotomy Member States/non-Member States. Tertium quid simply does not exist. Chapter II of the United Nations Charter (Membership) points out only the division into the original Members of the United Nations and the subsequently admitted Members of the Organization, a division which has no substantive meaning in terms of membership rights and duties, but only that of historical record. Article 2 of the Charter of the United Nations, setting out the principles on which the Organization and its Members are based and shall act, provides in paragraph 1 that "[t]he Organization is based on the principle of the sovereign equality of all its Members".

6. USE OF FORCE AND RELATED PROBLEMS 6.1. Use of Force

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Use of Force and Related Problems Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 326-329 S.O. Simma] 5. In accordance with what I stated at the outset, the reason why I decided to vote in favour of the first part of the Judgment’s dispositif is that I consider it of utmost importance, and a matter of principle, for the Court to pronounce itself on questions of the threat or use of force in international relations whenever it is given the opportunity to do so. In this regard, the desirable standard of vigour and clarity was set already in the Corfu Channel case where the Court condemned a right to self–help by armed force claimed by the United Kingdom "as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law"46. Unfortunately, in the somber light of developments over the 50 years that have passed since the Corfu Channel case, but more particularly in the recent past, this statement of the Court shows traits of a prophecy.

6. My agreement with the present position of the Court in principle does not however keep me from criticizing the Judgment for what I consider the half–heartedness of the manner in which it deals with the question of the use of force. I recognize of course that there are valid legal reasons for the Court to keep what has to be said on the legality of United States military actions against the oil platforms within the confines of the text of Article XX, paragraph 1 (d), of the Treaty. In fact, my criticism of the Court’s treatment of the issues arising under that provision does not stem from any disagreement with what the text of the Judgment is saying. Rather, what concerns me is what the Court has decided not to say. I find it regrettable that the Court has not mustered the courage of restating, and thus reconfirming, more fully fundamental principles of the law of the United Nations as well as customary international law (principles that in my view are of the nature of jus cogens) on the use of force, or rather the prohibition on armed force, in a context and at a time when such a reconfirmation is called for with the greatest urgency. I accept of course that, since its jurisdiction is limited to the bases furnished by the 1955 Treaty, it would not have been possible for the Court to go as far as stating in the dispositif of its Judgment that, since the United States attacks on the oil platforms involved a use of armed

46

Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 35.

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force that cannot be justified as self–defence, these attacks must not only, for reasons of their own, be found not to have been necessary to protect the essential security interests of the United States within the meaning of Article XX of the Treaty; they must also be found in breach of Article 2 (4) of the United Nations Charter. What the Court could have done, without neglecting any jurisdictional bounds as I see them, is to restate the backbone of the Charter law on use of force by way of strong, unequivocal obiter dicta. Everybody will be aware of the current crisis of the United Nations system of maintenance of peace and security, of which Articles 2 (4) and 51 are cornerstones. We currently find ourselves at the outset of an extremely controversial debate on the further viability of the limits on unilateral military force established by the United Nations Charter47. In this debate, "supplied" with a case allowing it to do so, the Court ought to take every opportunity to secure that the voice of the law of the Charter rise above the current cacophony. After all, the International Court of Justice is not an isolated arbitral tribunal or some regional institution but the principal judicial organ of the United Nations. What we cannot but see outside the courtroom is that, more and more, legal justification of use of force within the system of the United Nations Charter is discarded even as a fig leaf, while an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force. If such voices are an indication of the direction in which legal–political discourse on use of force not authorized by the Charter might move, do we need more to realize that for the Court to speak up as clearly and comprehensively as possible on that issue is never more urgent than today? In effect, what the Court has decided to say or, rather, not to say in the present Judgment is an exercise in inappropriate self–restraint.

7. Paragraph 78 of the Judgment concludes that the United States attacks against the oil platforms cannot be justified, under Article XX, paragraph 1 (d), of the Treaty of 1955, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying as acts of self–defence under "international law on the question" (see infra), and thus did not fall within the category of measures that could be contemplated, "upon its correct interpretation", by the said provision of the Treaty. I admit of course that this passage can be read indeed, it must be read as stating by way of implication that the United States actions, constituting unilateral use of "armed force 47

Cf. Secretary–General Kofi Annan’s Address to the General Assembly of 23 September 2003, General Assembly, 7th Plenary Meeting, 23 September 2003,

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not qualifying, under international law ... as acts of self–defence", were therefore in breach of Article 2 (4) of the United Nations Charter. Tertium non datur. It is a great pity however that the reasoning of the Court does not draw this necessary conclusion, and thus strengthen the Charter prohibition on the threat or use of armed force, in straightforward, terms. To repeat, I cannot see how in doing so the Court would have gone beyond the bounds of its jurisdiction. The text of the Judgment should have included an unambiguous statement to the effect that the United States military operations against the oil platforms, since they were not conducted in justified self–defence against an armed attack by Iran, must be considered breaches of the prohibition on the use of military force enshrined in the United Nations Charter and in customary international law.

8. Instead of doing so, the text adopted by the majority of the Court explains what is to be understood by the "international law on the question" (para. 78) in a way that comes dangerously close to creating the impression that the Court attempts to conceal the law of the Charter rather than to emphasize it: it speaks throughout its extensive debate on the United States attacks in light of Article XX of "international law on the question" (i.e., the question of the use of force), "international law applicable in the case" or " the relevant rules of international law". What these relevant, applicable, etc. rules actually are is spelled out only once, and then in the subordinate part of a sentence: in paragraph 42, the Judgment states that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of the Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an unlawful use of force "by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law" (emphasis added). Again: nowhere else in the part of the Judgment dealing with the United States attacks is the United Nations Charter expressly mentioned. It is difficult to view such hiding of the law of the Charter behind the veil of terms like those that I have quoted above as a mere matter of style; it could unfortunately also be understood as a most unwelcome downgrading of the relevance and importance of the rules of the United Nations Charter on the use of force as I just said, precisely at a time when the effectiveness of these rules is being challenged to the breaking–point.

A/58/PV.7, at p. 3.

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[pp. 377-378 S.O. Rigaux] 17. The question to be answered for purposes of applying and interpreting Article XX, paragraph 1 (d), of the 1955 Treaty is whether the use of force falls within the “measures” that a State may take to protect its essential security interests. Or, in other words, do the measures from which a State may choose in order to protect its essential security intrests include the use of armed force against another State? For that was certainly what the attack on the oil platforms was, since these, being located on Iran’s continental shelf, fall within the exclusive jurisdiction of that State. There are two ways of answering the question as posed in these specific terms. Either we accept that paragraph 1 (d) of Article XX falls to be considered in some form of isolation which cuts it off from the other rules of international law, in particular the United Nations Charter and the norms of customary international law prohibiting the use of force, or we accept that the prohibition of the use of force in accordance with the terms of Article 2, paragraph 4, of the Charter and with customary international law forms part of jus cogens, which would prohibit States from derogating therefrom in their bilateral treaty relations. For that would indeed be the consequence to which the first reply to the question would lead: paragraph 1 (d) of Article XX would permit either of the contracting States to use armed force against the other State in circumstances which would not have to satisfy the requirements of Article 51 of the Charter but which it would be entitled to take under the - undefined – guise of “measures to protect its essential security interests”.

18. In its 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did indeed reject the United States defence based on paragraph 1 (d) of Artricle XXI of the Treaty of Friendship with Nicaragua (having first rejected the self-defence argument). However, in holding that “the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, cannot possibly be justified as ‘necessary’ to protect the essential security interests of the United States”48, the Court does not expressly explain the reason for its decision: is it because the actions attributed to the United States go beyond the nature and scope of measures which may be taken under Article XXI of the Treaty of Friendship, or, more simply, because such actions were not necessary to protect essential security interests, but would not have been unlawful if they had satisfied that requirement? Point 2 of the operative paragraph of the 1986 Judgment expressly rejects “the justification of collective self-defence maintained by the United States 48 I.C.J. Reports 1986, p. 141, para. 282.

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of America”, whilst no other part of that operative paragrpaph refers to Article XXI of the Treaty of Friendship. In order to decide that the measures which a State is authorized to take under paragraph 1 (d) of Article XX of the 1955 Treaty and numerous similar provisions in other bilateral treaties of friendship and commerce do not include the use of force, the Court need not have recourse to the United Nations Charter or customary rules of international law on the use of force. It is open to the Court, while confining itself to interpreting and applying the bilateral treaty – its sole basis of jurisdiction – to conclude, simply by interpreting paragraph 1 (d), that the High Contracting Parties did not intend to confer upon one another a mutual freedom to have recourse to armed force in the context of a measue necessary to protect essential security interests. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 171] 87. The Court first recalls that, pursuant to Article 2, paragraph 4, of the United Nations Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." On 24 October 1970, the General Assembly adopted resolution 2625 (XXV), entitled "Declaration on Principles of International Law concerning Friendly Relations and Co– operation among States" (hereinafter "resolution 2625 (XXV)"), in which it emphasized that "No territorial acquisition resulting from the threat or use of force shall be recognized as legal." 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.

[pp. 194-195] 140. The Court has, however, considered whether Israel could rely on a state of necessity which would preclude the wrongfulness of the construction of the

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wall. In this regard the Court is bound to note that some of the conventions at issue in the present instance include qualifying clauses of the rights guaranteed or provisions for derogation (see paragraphs 135 and 136 above). Since those treaties already address considerations of this kind within their own provisions, it might be asked whether a state of necessity as recognized in customary international law could be invoked with regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged. However, the Court will not need to consider that question. 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 "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). One of those conditions was stated by the Court in terms used by the International Law Commission, in a text which in its present form requires that the act being challenged be "the only way for the State to safeguard an essential interest against a grave and imminent peril" (Article 25 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts; see also former Article 33 of the Draft Articles on the International Responsibility of States, with slightly different wording in the English text). In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.

141. The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.

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Use of Force and Related Problems Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 198-199] 52. … the Court draws attention to the fact that the consent that had been

given to Uganda to place its forces in the DRC, and to engage in military operations, was not an open-ended consent. The DRC accepted that Uganda could act, or assist in acting, against rebels on the eastern border and in particular to stop them operating across the common border. Even had consent to the Ugandan military presence extended much beyond the end of July 1998, the parameters of that consent, in terms of geographic location and objectives, would have remained thus restricted.

53. In the event, the issue of withdrawal of consent by the DRC, and that of expansion by Uganda of the scope and nature of its activities, went hand in hand. The Court observes that at the Victoria Falls Summit (see paragraph 33 above) the DRC accused Rwanda and Uganda of invading its territory. Thus, it appears evident to the Court that, whatever interpretation may be given to President Kabila’s statement of 28 July 1998, any earlier consent by the DRC to the presence of Ugandan troops on its territory had at the latest been withdrawn by 8 August 1998, i.e. the closing date of the Victoria Falls Summit.

[p. 210] 97. The Lusaka Agreement is, as Uganda argues, more than a mere ceasefire agreement, in that it lays down various "principles" (Art. III) which cover both the internal situation within the DRC and its relations with its neighbours. The three annexes appended to the Agreement deal with these matters in some considerable detail. The Agreement goes beyond the mere ordering of the parties to cease hostilities; it provides a framework to facilitate the orderly withdrawal of all foreign forces to a stable and secure environment. The Court observes that the letter from the SecretaryGeneral of the United Nations to the President of Uganda of 4 May 2001, calling for Uganda to adhere to the agreed timetable for orderly withdrawal, is to be read in that light. It carries no implication as to the Ugandan military presence having been

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accepted as lawful. The overall provisions of the Lusaka Agreement acknowledge the importance of internal stability in the DRC for all of its neighbours. However, the Court cannot accept the argument made by Uganda in the oral proceedings that the Lusaka Agreement constituted "an acceptance by all parties of Uganda’s justification for sending additional troops into the DRC between mid-September 1998 and mid-July 1999".

[pp. 212] 102. The Luanda Agreement, a bilateral agreement between the DRC and Uganda on "withdrawal of Ugandan troops from the Democratic Republic of the Congo, co-operation and normalisation of relations between the two countries", alters the terms of the multilateral Lusaka Agreement. The other parties offered no objection.

103. The withdrawal of Ugandan forces was now to be carried out "in accordance with the Implementation Plan marked Annex ‘A’ and attached thereto" (Article 1, paragraph 1). This envisaged the completion of withdrawal within 100 days after signature, save for the areas of Gbadolite, Beni and their vicinities, where there was to be an immediate withdrawal of troops (Article 1, paragraph 2). The Parties also agreed that "the Ugandan troops shall remain on the slopes of Mt. Ruwenzori until the Parties put in place security mechanisms guaranteeing Uganda’s security, including training and co-ordinated patrol of the common border".

104. The Court observes that, as with the Lusaka Agreement, none of these elements purport generally to determine that Ugandan forces had been legally present on the territory of the DRC. The Luanda Agreement revised the modus operandi for achieving the withdrawal of Ugandan forces in a stable security situation. It was now agreed − without reference to whether or not Ugandan forces had been present in the area when the agreement was signed, and to whether any such presence was lawful − that their presence on Mount Ruwenzori should be authorized, if need be, after the withdrawal elsewhere had been completed until appropriate security mechanisms had been put in place. The Court observes that this reflects the acknowledgment by both

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Parties of Uganda’s security needs in the area, without pronouncing upon the legality of prior Ugandan military actions there or elsewhere.

105. The Court thus concludes that the various treaties directed to achieving and maintaining a ceasefire, the withdrawal of foreign forces and the stabilization of relations between the DRC and Uganda did not (save for the limited exception regarding the border region of the Ruwenzori Mountains contained in the Luanda Agreement) constitute consent by the DRC to the presence of Ugandan troops on its territory for the period after July 1999, in the sense of validating that presence in law.

[pp. 214-215] 110. In turning to its assessment of the legal character of Uganda’s activities at Aru, Beni, Bunia and Watsa in August 1998, the Court begins by observing that, while it is true that those localities are all in close proximity to the border, "as per the consent that had been given previously by President Kabila", the nature of Ugandan action at these locations was of a different nature from previous operations along the common border. Uganda was not in August 1998 engaging in military operations against rebels who carried out cross-border raids. Rather, it was engaged in military assaults that resulted in the taking of the town of Beni and its airfield between 7 and 8 August, followed by the taking of the town of Bunia and its airport on 13 August, and the town of Watsa and its airport at a date between 24 and 29 August.

111. The Court finds these actions to be quite outside any mutual understanding between the Parties as to Uganda’s presence on Congolese territory near to the border. The issue of when any consent may have terminated is irrelevant when the actions concerned are so clearly beyond co-operation "in order to ensure peace and security along the common border", as had been confirmed in the Protocol of 27 April 1998.

112. The Court observes that the Ugandan operations against these eastern border towns could therefore only be justified, if at all, as actions in self-defence. However, at no time has Uganda sought to justify them on this basis before the Court.

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[pp. 223-225] 148. The prohibition against the use of force is a cornerstone of the United Nations Charter. Article 2, paragraph 4, of the Charter requires that: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid down. It does not allow the use of force by a State to protect perceived security interests beyond these parameters. Other means are available to a concerned State, including, in particular, recourse to the Security Council.

149. The Court has found that, from 7 August 1998 onwards, Uganda engaged in the use of force for purposes and in locations for which it had no consent whatever. The Court has also found that the events attested to by Uganda did not justify recourse to the use of force in self-defence.

150. The long series of resolutions passed by the Security Council (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 (2003), 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)) and the need for the United Nations to deploy MONUC, as well as the prolonged efforts by the United Nations to restore peace in the region and full sovereignty to the DRC over its territory, testify to the magnitude of the military events and the attendant suffering. The same may be said of the need to appoint a Special Rapporteur on the situation of human rights, a Special Envoy of the Secretary-General for that region, and the establishment of a panel (later reconstituted) to report on certain of the categories of facts relating to natural resources.

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151. The Court recalls that on 9 April 1999 the Security Council determined the conflict to constitute a threat to peace, security and stability in the region. In demanding an end to hostilities and a political solution to the conflict (which call was to lead to the Lusaka Agreement of 10 July 1999), the Security Council deplored the continued fighting and presence of foreign forces in the DRC and called for the States concerned "to bring to an end the presence of these uninvited forces" (United Nations doc. S/RES/1234, 9 April 1999).

152. The United Nations has throughout this long series of carefully balanced resolutions and detailed reports recognized that all States in the region must bear their responsibility for finding a solution that would bring peace and stability. The Court notes, however, that this widespread responsibility of the States of the region cannot excuse the unlawful military action of Uganda.

153. The evidence has shown that the UPDF traversed vast areas of the DRC, violating the sovereignty of that country. It engaged in military operations in a multitude of locations, including Bunia, Kisangani, Gbadolite and Ituri, and many others. These were grave violations of Article 2, paragraph 4, of the Charter.

154. The Court notes that the Security Council, on 16 June 2000, expressed "outrage at renewed fighting between Ugandan and Rwandan forces in Kisangani", and condemned it as a "violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo" (United Nations doc. S/RES/1304 (2000)).

[pp. 226-227] 161. 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.

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162. Thus the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations (hereinafter "the Declaration on Friendly Relations") provides that: "Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force." (General Assembly resolution 2625 (XXV), 24 October 1970.) 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.

163. 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.

164. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, 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). 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).

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165. In relation to the first of the DRC’s final submissions, the Court accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.

[pp. 294 S.O. Parra-Aranguren] 7. … the majority of the Court understands that the Lusaka Ceasefire Agreement did not change the legal status of the presence of Uganda, i.e., in violation of international law, but at the same time it considers that Uganda was under an obligation to respect the timetable agreed upon, as revised in the Kampala Disengagement Plan of 8 April 2000, the Harare Disengagement Plan of 6 December 2000 and the Luanda Agreement of 6 September 2002.

8. This interpretation of the Lusaka Ceasefire Agreement, the Kampala Disengagement Plan, the Harare Disengagement Plan and the Luanda Agreement creates an impossible legal situation for Uganda. On the one hand, if Uganda complied with its treaty obligations and remained in the territory of the DRC until the expiration of the timetables agreed upon, Uganda would be in violation of international law because the legal status of its presence had not been changed, the status of its military forces in the DRC being a violation of international law. On the other hand, if Uganda chose not to violate international law as a consequence of its military presence in the DRC, and therefore withdrew its troops from the territory of the DRC otherwise than in accordance with the timetables agreed upon, Uganda would have violated its treaty obligations, thereby also being in violation of international law.

9. This reasoning is, in my opinion, persuasive enough not to accept the very peculiar interpretation advanced in the Judgment of the Lusaka Ceasefire Agreement, the Kampala Disengagement Plan, the Harare Disengagement Plan and the Luanda Agreement. Moreover, an examination of the terms of these instruments leads to a different conclusion.

[pp. 329-332 S.O. Elaraby] 9. In view of the submissions of the Applicant, and the gravity of the violations recognized by the Court, I feel it is incumbent upon the Court to respond to the

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serious allegation put forward by the Democratic Republic of the Congo that the activities of Uganda also constitute aggression as prohibited under international law.

10. Aggression is not a novel concept in international law. In the aftermath of the Second World War, the Nuremberg Tribunal stated that "to initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole" (Judgment of 1 October 1946, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November - 1 October 1946, Vol. 1, p. 186). The founding of the United Nations was a landmark and a turning point in the outlawing of the use of force. The Charter of the United Nations lays down, in Article 2, paragraph 4, a general prohibition on "the threat and use of force" in States international relations. Article 39 confers upon the Security Council the authority to make a determination of the "existence of any threat to the peace, breach of the peace, or act of aggression" in order to make recommendations and take action under other provisions of Chapter VII for the maintenance of international peace and security.

11. It does not follow however that the identification of aggression is solely within the purview of the Security Council. The Court has confirmed the principle that the Security Council’s responsibilities relating to the maintenance of international peace and security are "‘primary’ not exclusive" (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 163), it is clear that aggression − as a legal as well as a political concept − can be of equal concern to other competent organs of the United Nations, including the Court as "the principal judicial organ of the United Nations" (Article 92, Charter of the United Nations). Although the term’s use in political and popular discourse is often highly charged, it nevertheless remains that aggression is a legal concept with legal connotations and legal consequences, matters which fall clearly within the remit of the Court, particularly when the circumstances of a case coming before the Court call for a decision thereon. There is now general recognition that, as Judge Lachs wrote in the Lockerbie case, "the dividing line between political and legal disputes is blurred as law becomes ever more frequently an integral part of international controversies" (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), Order of 14 April 1992, I.C.J. Reports 1992, p. 139).

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12. The General Assembly and its subsidiary organs worked for many years to achieve an appropriate and effective definition of what constitutes aggression. The culmination of such efforts came with the adoption of the General Assembly Declaration on the Definition of Aggression (resolution 3314 (XXIX)). This resolution sets out a general definition of the term in Article 1, while also citing a non-exhaustive list of situations which amount to aggression in Article 3. Although this definition is not without its problems and at the time certain Member States had reservations about certain aspects thereof, it was nonetheless adopted without a vote by the General Assembly of the United Nations and marks a noteworthy success in achieving by consensus a definition of aggression.

13. The definition does not claim to be either completely exhaustive or authoritative. Yet it does offer an invaluable guide to the scope of aggression and an elucidation of the meaning of this term in international relations. As the Preamble of the Declaration emphasizes, "the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim".

14. The Preamble to the Definition of Aggression in resolution 3314 (XXIX) also aptly clarifies that aggression "must be considered in the light of all the circumstances of each particular case". It is to this consideration that I now turn. Examining the activities by Uganda against the Democratic Republic of the Congo found to have taken place in the current case, it is, in my view, clear that such activities amount to aggression. They fall clearly within the scope of Article 1 of the definition: "[a]ggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition".

15. In the Nicaragua case, aggression was considered by the Court in the context of an armed attack possibly giving rise to self-defence under customary international law. Although the Court found in that case that no such armed attack had been proven, the Court held that

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"[t]his description contained in Article 3, paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX), may be taken to reflect customary international law" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 103 , para. 195).

16. The gravity of the factual circumstances and context of the present case dwarfs that of the Nicaragua case. The acknowledgment by the Court of the customary international law status of the definition of aggression is of considerable importance to the instant case and in particular to the Democratic Republic of the Congo’s claim that Uganda has violated the prohibition of aggression in international law. Indeed the definition of aggression applies a fortiori to the situation at hand: the full force of the Charter provisions are applicable; the nature and form of the activities under consideration fall far more clearly within the scope of the definition; the evidence before the Court is more complete and both Parties have been present at all stages of the proceedings.

17. These factors, allied with the central position of this claim within the Application and the pleadings of the Democratic Republic of the Congo, require the Court to adhere to its judicial responsibility to adjudicate on a normative basis. The Court’s dicta on this point are of a broader significance as they establish a normative test which should be operational across the board. The same yardstick should be used in every case to gauge the unlawful use of force by any State. Article 38 (b) of the Statute mandates the Court to apply "international custom, as evidence of a general practice accepted as law". By dint of its dicta in the Nicaragua case, the Court should, in my view, have embarked on a determination as to whether the egregious use of force by Uganda falls within the customary rule of international law as embodied in General Assembly resolution 3314 (XXIX).

18. Thus it was my expectation that the Court’s dicta in the Nicaragua case, even if construed as obiter would be followed in the instant case by qualifying the grave use of force by Uganda as amounting to aggression. Rarely if ever has the Court been asked to pronounce upon a situation where such grave violations of the prohibition of the use of force have been committed. This makes it all the more important for the Court to consider the question carefully and − in the light of its dicta in the Nicaragua case − to respond positively to the

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Democratic Republic of the Congo’s allegation that Ugandan armed activities against and on its territory amount to aggression and constitute a breach of its obligations under international law.

[pp. 334-335 S.O. Simma] 2. One deliberate omission characterizing the Judgment will strike any politically alert reader: it is the way in which the Court has avoided dealing with the explicit request of the DRC to find that Uganda, by its massive use of force against the Applicant has committed an act of aggression. In this regard I associate myself with the criticism expressed in the separate opinion of Judge Elaraby. After all, Uganda invaded a part of the territory of the DRC of the size of Germany and kept it under her own control, or that of the various Congolese warlords she befriended, for several years, helping herself to the immense natural riches of these tormented regions. In its Judgment the Court cannot but acknowledge of course that by engaging in these "military activities" Uganda "violated the principle of non-use of force in international relations and the principle of non-intervention" (Judgment, paragraph 345 (1)). The Judgment gets toughest in paragraph 165 of its reasoning where it states that "[t]he unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter". So, why not call a spade a spade? If there ever was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan invasion of the DRC. Compared to its scale and impact, the military adventures the Court had to deal with in earlier cases, as in Corfu Channel, Nicaragua, or Oil Platforms, border on the insignificant.

3. It is true that the United Nations Security Council, despite adopting a whole series of resolutions on the situation in the Great Lakes region (cf. paragraph 150 of the Judgment) has never gone as far as expressly qualifying the Ugandan invasion as an act of aggression, even though it must appear as a textbook example of the first one of the definitions of "this most serious and dangerous form of the illegal use of force" laid down in General Assembly resolution 3314 (XXIX). The Council will have had its own − political − reasons for refraining from such a determination. But the Court, as the principal judicial organ of the United Nations, does not have to follow that course. Its very raison d’être is to arrive at decisions based on law and nothing but the law, keeping the political context of the cases before it in mind, of course, but not desisting from stating what is manifest out of regard for

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such non-legal considerations. This is the division of labour between the Court and the political organs of the United Nations envisaged by the Charter!

[pp. 359 Decl. Verhoeven] 5. … However, ever since the Charter of the United Nations clearly banned the use of force, it is dfficult to see how a State having used armed force otherwise than in self-defence can elude its obligation to make reparation for the injury it has caused. It must be stressed that this injury comprises all the damage deriving from the violation of the prohibition of the use of force, regardless of whether it stems from acts or practices which in themselves comply with the rules of the law of war. It may be that breach of these rules augments the responsibility deriving from the violation of the jus ad bellum; be that as it may, compliance with the jus in bello is never sufficient to release a party from the obligation to make good all consequences of its violation of the jus ad bellum. Where occupation is unlawful because it results from the use of force otherwise than self-defence, the occupying State bears an obligation, for example, to make reparation for all ensuing damage, even if it has acted in accordance with the Fourth Geneva Convention (1949) and with the Regulations annexed to the Fourth Hague Convention (1907). Contrary to the suggestion by the Respondent, an occupant enjoys no right or prerogative under those Regulations by which it can avoid responsibility in respsect of an occupation established in violation of the jus ad bellum. This is one of the basic consequences of the contempory prohibition on the use of force. It does not follow that a State legally using force may breach the jus in bello; the only point is that a State unlawfully using force cannot plead compliance with the jus in bello to avoid having to make reparation for the injury resulting from its military actions.

6.2. Self–defence

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 181-183] 39. The question of the relationship between self–defence and Article XX, paragraph 1 (d), of the Treaty has been disputed between the Parties, in particular as regards the jurisdiction of the Court. The United States emphasizes that the Court’s jurisdiction in this case is limited, pursuant to Article XXI, paragraph 2, of the 1955 Treaty, to the interpretation and application of that Treaty, and does not extend directly

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to the determination of the legality of any action of either Party under general international law. It has contended that "the Court need not address the question of self–defence ... [T]he scope of the exemption provided by Article XX, paragraph 1 (d), is not limited to those actions that would also meet the standards for self–defence under customary international law and the United Nations Charter." It however does not contend that the Treaty exempts it, as between the parties, from the obligations of international law on the use of force, but simply that where a party justifies certain action on the basis of Article XX, paragraph 1 (d), that action has to be tested solely against the criteria of that Article, and the jurisdiction conferred on the Court by Article XXI, paragraph 2, of the Treaty goes no further than that.

40. In the view of the Court, the matter is one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (d). The question is whether the parties to the 1955 Treaty, when providing therein that it should "not preclude the application of measures ... necessary to protect [the] essential security interests" of either party, intended that such should be the effect of the Treaty even where those measures involved a use of armed force; and if so, whether they contemplated, or assumed, a limitation that such use would have to comply with the conditions laid down by international law. 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.). This approach is consistent with the view that, when Article XX, paragraph 1 (d), is invoked to justify actions involving the use of armed force, allegedly in self–defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self–defence under international law.

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41. It should not be overlooked that Article I of the 1955 Treaty, quoted in paragraph 31 above, declares that "There shall be firm and enduring peace and sincere friendship between the United States of America and Iran." The Court found in 1996 that this Article "is such as to throw light on the interpretation of the other Treaty provisions" (I.C.J. Reports 1996 (II), p. 815, para. 31). It is hardly consistent with Article I to interpret Article XX, paragraph 1 (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" (Article 31, paragraph 3 (c)). The Court cannot accept that Article XX, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.

42. The Court is therefore satisfied that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an unlawful use of force, by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law. The Court would however emphasize that its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty. The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the parties.

[pp. 185-187] 49. In its Counter–Memorial, the United States linked its previous invocation of the right of self–defence with the application of Article XX, paragraph 1 (d),

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of the 1955 Treaty. It argued that Iranian actions during the relevant period constituted a threat to essential security interests of the United States, inasmuch as the flow of maritime commerce in the Persian Gulf was threatened by Iran’s repeated attacks on neutral vessels; that the lives of United States nationals were put at risk; that United States naval vessels were seriously impeded in their security duties; and that the United States Government and United States nationals suffered severe financial losses. According to the United States, it was clear that diplomatic measures were not a viable means of deterring Iran from its attacks: "Accordingly, armed action in self–defense was the only option left to the United States to prevent additional Iranian attacks".

50. The Court will thus first concentrate on the facts tending to show the validity or otherwise of the claim to exercise the right of self–defence. In its communication to the Security Council, cited above, the United States based this claim on the existence of "a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without provocation"; it referred in particular to a missile attack on the Sea Isle City as being the specific incident that led to the attack on the Iranian platforms. Before the Court, it has based itself more specifically on the attack on the Sea Isle City, but has continued to assert the relevance of the other attacks (see paragraph 62 below). To justify its choice of the platforms as target, the United States asserted that they had "engaged in a variety of actions directed against United States flag and other non–belligerent vessels and aircraft". Iran has denied any responsibility for (in particular) the attack on the Sea Isle City, and has claimed that the platforms had no military purpose, and were not engaged in any military activity.

51. Despite having thus referred to attacks on vessels and aircraft of other nationalities, the United States has not claimed to have been exercising collective self–defence on behalf of the neutral States engaged in shipping in the Persian Gulf; this would have required the existence of a request made to the United States "by the State which regards

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itself as the victim of an armed attack" (I.C.J. Reports 1986, p. 105, para. 199). 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. 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 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). The United States must also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self– defence.

[pp. 190-192] 62. In its notification to the Security Council, and before the Court, the United States has however not relied solely on the Sea Isle City incident as constituting the "armed attack" to which the United States claimed to be responding. It asserted that that incident was "the latest in a series of such missile attacks against United States flag and other non–belligerent vessels in Kuwaiti waters in pursuit of peaceful commerce" and that "These actions are, moreover, only the latest in a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft without provocation." Before the Court, it has contended that the missile attack on the Sea Isle City was itself an armed attack giving rise to the right of self–defence; the alleged pattern of Iranian use of force, it is said, "added to the gravity of the specific attacks, reinforced the necessity of action in self–defense, and helped to shape the appropriate response".

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63. The United States relies on the following incidents involving United States flagged, or United States owned, vessels and aircraft, in the period up to 19 October 1987, and attributes them to Iranian action: the mining of the United States–flagged Bridgeton on 24 July 1987; the mining of the United States–owned Texaco Caribbean on 10 August 1987; and firing on United States Navy helicopters by Iranian gunboats, and from the Reshadat oil platform, on 8 October 1987. The United States also claims to have detected and boarded an Iranian vessel, the Iran Ajr, in the act of laying mines in international waters some 50 nautical miles north–east of Bahrain, in the vicinity of the entrance to Bahrain’s deep–water shipping channel. Iran has denied any responsibility for the mining of the Bridgeton and the Texaco Caribbean; as regards the Iran Ajr, Iran has admitted that the vessel was carrying mines, but denies that they were being laid at the time it was boarded, and claims that its only mission was to transport them by a secure route to a quite different area.

64. On the hypothesis that all the incidents complained of are to be attributed to Iran, and thus setting aside the question, examined above, of attribution to Iran of the specific attack on the Sea Isle City, the question is whether that attack, either in itself or in combination with the rest of the "series of ... attacks" cited by the United States can be categorized as an "armed attack" on the United States justifying self–defence. The Court notes first that the Sea Isle City was in Kuwaiti waters at the time of the attack on it, and that a Silkworm missile fired from (it is alleged) more than 100 km away could not have been aimed at the specific vessel, but simply programmed to hit some target in Kuwaiti waters. Secondly, the Texaco Caribbean, whatever its ownership, was not flying a United States flag, so that an attack on the vessel is not in itself to be equated with an attack on that State. As regards the alleged firing on United States helicopters from Iranian gunboats and from the Reshadat oil platform, no persuasive evidence has been supplied to support this allegation. There is no evidence that the minelaying alleged to have been carried out by the Iran Ajr, 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,

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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.

[pp. 195-196] 72. The Court notes further that, as on the occasion of the earlier attack on oil platforms, the United States in its communication to the Security Council claimed to have been exercising the right of self–defence in response to the "attack" on the USS Samuel B. Roberts, linking it also with "a series of offensive attacks and provocations Iranian naval forces have taken against neutral shipping in the international waters of the Persian Gulf". Before the Court, it has contended, as in the case of the missile attack on the Sea Isle City, that the mining was itself an armed attack giving rise to the right of self–defence and that the alleged pattern of Iranian use of force "added to the gravity of the specific attacks, reinforced the necessity of action in self–defense, and helped to shape the appropriate response" (see paragraph 62 above). No attacks on United States–flagged vessels (as distinct from United States–owned vessels), additional to those cited as justification for the earlier attacks on the Reshadat platforms, have been brought to the Court’s attention, other than the mining of the USS Samuel B. Roberts itself. The question is therefore whether that incident sufficed in itself to justify action in self–defence, as amounting to an "armed attack". 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.

73. As noted above (paragraph 43), in the present case a question of whether certain action is "necessary" arises both as an element of international law relating to self–defence and on the basis of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted, whereby the Treaty does "not preclude ... measures ... necessary to protect [the]

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essential security interests" of either party. In this latter respect, the United States claims that it considered in good faith that the attacks on the platforms were necessary to protect its essential security interests, and suggests that "A measure of discretion should be afforded to a party’s good faith application of measures to protect its essential security interests". Iran was prepared to recognize some of the interests referred to by the United States – the safety of United States vessels and crew, and the uninterrupted flow of maritime commerce in the Persian Gulf – as being reasonable security interests of the United States, but denied that the United States actions against the platforms could be regarded as "necessary" to protect those interests. 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".

[pp. 198-199] 76. The Court is not sufficiently convinced that the evidence available supports the contentions of the United States as to the significance of the military presence and activity on the Reshadat oil platforms; and it notes that no such evidence is offered in respect of the Salman and Nasr complexes. However, even accepting those contentions, for the purposes of discussion, the Court is unable to hold that the attacks made on the platforms could have been justified as acts of self–defence. 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 (I), 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). In the case both of the attack on the Sea Isle City and the mining of the USS Samuel B. Roberts, the Court is not satisfied that the attacks on the platforms were necessary to respond to these incidents. In this connection, the

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Court notes that there is no evidence that the United States complained to Iran of the military activities of the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral shipping, which does not suggest that the targeting of the platforms was seen as a necessary act. The Court would also observe that in the case of the attack of 19 October 1987, the United States forces attacked the R–4 platform as a "target of opportunity", not one previously identified as an appropriate military target.

77. As to the requirement of proportionality, the attack of 19 October 1987 might, had the Court found that it was necessary in response to the Sea Isle City incident as an armed attack committed by Iran, have been considered proportionate. In the case of the attacks of 18 April 1988, however, they were conceived and executed as part of a more extensive operation entitled "Operation Praying Mantis"(see paragraph 68 above). The question of the lawfulness of other aspects of that operation is not before the Court, since it is solely the action against the Salman and Nasr complexes that is presented as a breach of the 1955 Treaty; but the Court cannot assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation, which involved, inter alia, the destruction of two Iranian frigates and a number of other naval vessels and aircraft. As a response to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life, neither "Operation Praying Mantis" as a whole, nor even that part of it that destroyed the Salman and Nasr platforms, can be regarded, in the circumstances of this case, as a proportionate use of force in self–defence.

78. The Court thus concludes from the foregoing that the actions carried out by United States forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self–defence, and thus did not fall within the category of measures contemplated, upon its correct interpretation, by that provision of the Treaty.

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[p. 265 S.O. Kooijmans] 62. Regardless of whether the mining of the Samuel B. Roberts constituted an armed attack on the United States, entitling it to act in self–defence, the relevant question is whether the United States was unable to achieve the desired result (the protection of its essential security interests) by different conduct, involving either no use of armed force at all or merely its use on a lesser scale, for example by actions against naval vessels known to be involved in minelaying (such actions were part of operation "Praying Mantis", but their lawfulness is beyond the Court's jurisdiction). In view of the uncertainty about the platforms' role in the minelaying and the severe damage inflicted upon Iran's economic interests, I am not convinced that the destruction of the Salman and Nasr platforms is in conformity with the standard just mentioned or that it can be called a measure necessary to protect the essential security interests of the United States. I find it hard to avoid the impression that in reality a punitive intent prevailed.

63. In conclusion (and without having to scrutinize – as the Court did – whether all requirements of the law of self–defence are fulfılled), I am of the view that the attacks on the oil platforms cannot be seen as measures necessary to protect the essential security interests of the United States, even if these interests are construed in a broad sense.

[pp. 288-289 S.O. Buergenthal] 45. … because of its focus on the right of self–defence under international law rather than on Article XX, paragraph 1 (d), the Court erroneously invokes and relies on the conceptual differences under international law between individual and collective self–defence. Thus, for example, the Court notes that "[t]o justify its choice of the platforms as targets, the United States asserted that they had ‘engaged in a variety of actions directed against United States flag and other non–belligerent vessels and aircraft’." (Para. 50.) The Court rejects this defence in the following terms: "Despite having thus referred to attacks on vessels and aircraft of other nationalities, the United States has not claimed to have been exercising collective self–defence on behalf of the neutral States engaged in shipping in the Persian Gulf; this would have required the existence of a request made to the United States ‘by the State which regards itself as the victim of an armed attack’ (I.C.J. Reports 1986, p. 105, para. 199). Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the

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right of individual self–defence, the United States has to show that attacks had been made upon it ..." (Para. 51.)

46. By failing to focus on Article XX, paragraph 1 (d), and by analysing the evidence exclusively in terms of the right of self–defence under international law, the Court draws conclusions from the dichotomy between individual and collective self–defence that have no place in this case. This type of analysis is erroneous when applied to the interpretation of Article XX, paragraph 1(d), of the 1955 Treaty, since it permits "measures ... necessary to protect [a State's] essential security interests" without specifying that these measures can only be taken against a State that intended to damage the victim's essential security interests. Hence, even an indiscriminate attack not specifıcally aimed at the party to the Treaty, would provide a valid defence under Article XX, paragraph 1(d), if it threatened those interests. By failing to differentiate between the requirements of that Article and those of international law on the use of force, the Court erroneously fails to examine important evidence presented by the United States in justifıcation of the measures it took against Iran.

[pp. 331-334 S.O. Simma] 12. I am less satisfied with the argumentation used in the Judgment by which the Court arrives at the − correct − conclusion that, since the Iranian mine, gunboat or helicopter attacks on United States shipping did not amount to an "armed attack" within the meaning of Article 51 of the Charter, the United States actions cannot be justified as recourse to self–defence under that provision. The text of paragraph 51 of the Judgment might create the impression that, if offensive military actions remain below the − considerably high − threshold of Article 51 of the Charter, the victim of such actions does not have the right to resort to − strictly proportionate − defensive measures equally of a military nature. What the present Judgment follows at this point are some of the less fortunate statements in the Court’s Nicaragua Judgment of 198649. In my view, the permissibility of strictly defensive military action taken against attacks of the type involving, for example, the Sea Isle City or the Samuel B. Roberts cannot be denied. What we see in such instances is an unlawful use of force "short of" an armed attack ("agression armée") within the meaning of Article 51, as indeed "the most

49

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, e.g., p. 101, para. 191; p. 103, para. 194; p. 127, para. 249.

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grave form of the use of force"50. Against such smaller–scale use of force, defensive action − by force also "short of" Article 51 − is to be regarded as lawful51. In other words, I would suggest a distinction between (full–scale) self–defence within the meaning of Article 51 against an "armed attack" within the meaning of the same Charter provision on the one hand and, on the other, the case of hostile action, for instance against individual ships, below the level of Article 51, justifying proportionate defensive measures on the part of the victim, equally short of the quality and quantity of action in self–defence expressly reserved in the United Nations Charter. Here I see a certain analogy with the Nicaragua case, where the Court denied that the hostile activities undertaken by Nicaragua against El Salvador amounted to an "armed attack" within the meaning of Article 51, that would have given the United States a right to engage in collective self–defence, and instead qualified these activities as illegal military intervention. What the Court did consider permissible against such unlawful acts were "proportionate counter–measures", but only those resorted to by the immediate victim. The Court said: "While an armed attack would give rise to an entitlement to collective self– defence, a use of force of a lesser degree of gravity cannot ... produce any entitlement to take collective counter–measures involving the use of force. The acts of which Nicaragua is accused ... could only have justified proportionate counter–measures on the part of the State which had been the victim of these acts, ..."52 Hence, the Court drew a distinction between measures taken in legitimate self–defence on the basis of Article 51 of the Charter and lower– level, smaller–scale proportionate countermeasures which do not need to be based on that provision. In view of the context of the Court’s above dictum, by such proportionate countermeasures the Court cannot have understood mere pacific reprisals, more recently, and also

in

the

terminology

used

by

the

International

Law

Commission,

called

"countermeasures"53. Rather, in the circumstances of the Nicaragua case, the Court can only

50

Ibid., p. 101, para. 194.

51

I have not developed this view ad hoc, under the impact of the present case, but as long as 20 years ago; see A. Verdross–B. Simma, Universelles Völkerrecht. Theorie und Praxis, 3rd ed., 1984, p. 240, para. 472.

52

I.C.J. Reports 1986, p. 127, para. 249.

53

Cf. Articles 49–54 of the ILC’s text on the Responsibility of States for Internationally Wrongful Acts, adopted in 2001; cf. International Law Commission, Report on the Work of its Fifty–Third Session, Official Records of the General Assembly, Fifty–Sixth Session, Supplement No. 10 (A/56/10). The Commission strictly excluded from its concept of “countermeasures” any such measures amounting to a threat or use of force; cf. Article 50, para. 1 (a).

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have meant what I have just referred to as defensive military action "short of" full–scale self– defence. Unfortunately, the present Judgment decided not to address this issue at all.

13. To sum up my view on the use of force/self–defence aspects of the present case, there are two levels to be distinguished: there is, first, the level of "armed attacks" in the substantial, massive sense of amounting to "une agression armée", to quote the French authentic text of Article 51. Against such armed attacks, self–defence in its not infinite, but still considerable variety would be justified. But we may encounter also a lower level of hostile military action, not reaching the threshold of an "armed attack" within the meaning of Article 51 of the United Nations Charter. Against such hostile acts, a State may of course defend itself, but only within a more limited range and quality of responses (the main difference being that the possibility of collective self–defence does not arise, cf. Nicaragua) and bound to necessity, proportionality and immediacy in time in a particularly strict way.

14. In the present case, I agree with the Court that neither the broad pattern of unlawful use of force by Iran against United States vessels and their naval escorts nor the two specific attacks against the Sea Isle City and the Samuel B. Roberts amounted to an "armed attack" within the meaning of Article 51 of the United Nations Charter. These hostile activities could, as I have pointed out, have been countered immediately by "proportionate countermeasures" also of a military nature, consisting of defensive measures designed to eliminate the specific source of the threat or harm to affected ships in, and at the time of, the specific incidents. The Iranian oil platforms and their possible non–commercial activities during the Gulf War were too remote from these incidents (in every sense of this word) to provide a legitimate target for countermeasures within the meaning given to this term in the Nicaragua Judgment. Also, there is in the international law on the use of force no "qualitative jump" from iterative activities remaining below the threshold of Article 51 of the Charter to the type of "armed attack" envisaged there. However, as I read the facts of the present case, there was on the part of Iran no iterative or continued pattern of armed attacks against United States ships to begin with. Attacks on ships flying foreign flags could not be relied on by the United States in order to trigger Article 51 action. Furthermore, not a single Security Council resolution adopted at the material time determined that it was Iran (alone) which had engaged in "armed attacks" against neutral shipping in the Gulf.

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15. But even if we assume, for the sake of discussion, that the United States had been the victim of an armed attack by Iran within the meaning of Article 51 of the United Nations Charter, the United States attacks on the oil platforms would not qualify as legitimate acts of self–defence under that provision. The United States actions fulfilled neither the condition of necessity nor that of proportionality. In the light of the material before the Court relating to the political and military considerations on the part of United States authorities that led to the attacks on the oil platforms, the selection of these platforms as targets was made on the basis of decisions by military commanders which may well be considered state of the art from the viewpoint of military efficiency, etc., but to which the notion of "self–defence" was quite foreign. It is possible, indeed probable, that some monitoring of United States as well as any other neutral shipping had actually taken place from aboard the oil platforms. Obviously this was a nuisance to United States military decision–makers. The United States authorities might also have been right in assuming a connection between information flowing, as it were, from the oil platforms and the harassing of neutral shipping in the Gulf. Thus, as I see it, either following the incidents involving the Sea Isle City and the Samuel B. Roberts, the United States military considered that enough was enough, and thus decided to neutralize the oil platforms, or, rather, the United States used these two incidents to teach Iran a broader lesson. The material put before the Court by the United States contains several more or less convincing reasons as to why it was the oil platforms and not some other military targets that were chosen for the purpose of a "reply" to the specific incidents involving the Sea Isle City and the Samuel B. Roberts, respectively the broader pattern of unlawful force engaged in by Iran. But nowhere in these materials do we encounter any trace of the considerations that an international lawyer would regard as necessary in order to justify action taken in self–defence.

16. I arrive at the conclusion that the United States military actions against the oil platforms were not of the defensive nature required both by Article 51 of the United Nations Charter and the general international law governing "proportionate counter–measures", to refer again to the Nicaragua Court’s tantalizing phrase. As I interpret the law on the limits of unilateral use of armed force as it has evolved since 1945, there is no way to regard such actions as lawful or justified.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

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[pp. 194] 138. The Court has thus concluded that the construction of the wall constitutes action not in conformity with various international legal obligations incumbent upon Israel. However, Annex I to the report of the Secretary–General states that, according to Israel: "the construction of the Barrier is consistent with Article 51 of the Charter of the United Nations, its inherent right to self–defence and Security Council resolutions 1368 (2001) and 1373 (2001)". More specifically, Israel’s Permanent Representative to the United Nations asserted in the General Assembly on 20 October 2003 that "the fence is a measure wholly consistent with the right of States to self–defence enshrined in Article 51 of the Charter"; the Security Council resolutions referred to, he continued, "have clearly recognized the right of States to use force in self–defence against terrorist attacks", and therefore surely recognize the right to use non–forcible measures to that end (A/ES–10/PV.21, p. 6).

139. Under the terms of Article 51 of the Charter of the United Nations: "Nothing in the present Charter shall impair the inherent right of individual or collective self–defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." 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. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self–defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

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[pp. 229-230 S.O. Kooijmans] 35. Self–defence – Israel based the construction of the wall on its

inherent right of self–defence as contained in Article 51 of the Charter. In this respect it relied on Security Council resolutions 1368 (2001) and 1373 (2001), adopted after the terrorist attacks of 11 September 2001 against targets located in the United States. The Court starts its response to this argument by stating that Article 51 recognizes the existence of an inherent right of self–defence in the case of an armed attack by one State against another State (para. 139). Although this statement is undoubtedly correct, as a reply to Israel’s argument it is, with all due respect, beside the point. Resolutions 1368 and 1373 recognize the inherent right of individual or collective self–defence without making any reference to an armed attack by a State. The Security Council called acts of international terrorism, without any further qualification, a threat to international peace and security which authorizes it to act under Chapter VII of the Charter. And it actually did so in resolution 1373 without ascribing these acts of terrorism to a particular State. This is the completely new element in these resolutions. This new element is not excluded by the terms of Article 51 since this conditions the exercise of the inherent right of self–defence on a previous armed attack without saying that this armed attack must come from another State even if this has been the generally accepted interpretation for more than 50 years. The Court has regrettably by–passed this new element, the legal implications of which cannot as yet be assessed but which marks undeniably a new approach to the concept of self–defence.

36. The argument which in my view is decisive for the dismissal of Israel’s claim that it is merely exercising its right of self–defence can be found in the second part of paragraph 139. The right of self–defence as contained in the Charter is a rule of international law and thus relates to international phenomena. Resolutions 1368 and 1373 refer to acts of international terrorism as constituting a threat to international peace and security; they therefore have no immediate bearing on terrorist acts originating within a territory which is under control of the State which is also the victim of these acts. And Israel does not claim that these acts have their origin elsewhere. The Court therefore rightly concludes that the situation is different from that contemplated by resolutions 1368 and 1373 and that consequently Article 51 of the Charter cannot be invoked by Israel.

[pp. 241-243 Decl. Buergenthal] 5. Whether Israel’s right of self-defence is in play in the instant case depends, in my opinion, on an examination of the nature and scope of the deadly

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terrorist attacks to which Israel proper is being subjected from across the Green Line and the extent to which the construction of the wall, in whole or in part, is a necessary and proportionate response to these attacks. As a matter of law, it is not inconceivable to me that some segments of the wall being constructed on Palestinian territory meet that test and that others do not. But to reach a conclusion either way, one has to examine the facts bearing on that issue with regard to the specific segments of the wall, their defensive needs and related topographical considerations. Since these facts are not before the Court, it is compelled to adopt the to me legally dubious conclusion that the right of legitimate or inherent self-defence is not applicable in the present case. The Court puts the matter as follows: "Article 51 of the Charter ... 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. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case." (Para. 139.)

6. There are two principal problems with this conclusion. The first is that the United Nations Charter, in affirming the inherent right of self-defence, does not make its exercise dependent upon an armed attack by another State, leaving aside for the moment the question whether Palestine, for purposes of this case, should not be and is not in fact being assimilated by the Court to a State. Article 51 of the Charter provides that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations ..." Moreover, in the resolutions cited by the Court, the Security Council has made clear that "international terrorism constitutes a threat to international peace and security" while "reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 (2001)" (Security Council resolution 1373 (2001)). In its resolution

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1368 (2001), adopted only one day after the September 11, 2001 attacks on the United States, the Security Council invokes the right of self-defence in calling on the international community to combat terrorism. In neither of these resolutions did the Security Council limit their application to terrorist attacks by State actors only, nor was an assumption to that effect implicit in these resolutions. In fact, the contrary appears to have been the case. (See Thomas Franck, "Terrorism and the Right of Self-Defense", American Journal of International Law, Vol. 95, 2001, pp. 839-840.) Second, Israel claims that it has a right to defend itself against terrorist attacks to which it is subjected on its territory from across the Green Line and that in doing so it is exercising its inherent right of self-defence. In assessing the legitimacy of this claim, it is irrelevant that Israel is alleged to exercise control in the Occupied Palestinian Territory – whatever the concept of "control" means given the attacks Israel is subjected from that territory – or that the attacks do not originate from outside the territory. For to the extent that the Green Line is accepted by the Court as delimiting the dividing line between Israel and the Occupied Palestinian Territory, to that extent the territory from which the attacks originate is not part of Israel proper. Attacks on Israel coming from across that line must therefore permit Israel to exercise its right of self-defence against such attacks, provided the measures it takes are otherwise consistent with the legitimate exercise of that right. To make that judgment, that is, to determine whether or not the construction of the wall, in whole or in part, by Israel meets that test, all relevant facts bearing on issues of necessity and proportionality must be analysed. The Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 218] 128. Article 51 of the Charter refers to the right of "individual or collective" self-defence. The Court notes that a State may invite another State to assist it in using force in self-defence.

[pp. 221-223] 141. In the light of this assessment of all the relevant evidence, the Court is now in a position to determine whether the use of force by Uganda within the territory of the DRC could be characterized as self-defence.

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142. Article 51 of the United Nations Charter provides: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

143. The Court recalls that Uganda has insisted in this case that operation "Safe Haven" was not a use of force against an anticipated attack. 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 selfdefence 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". So it is in the present case. The Court feels constrained, however, to observe that the wording of the Ugandan High Command document on the position regarding the presence of the UPDF in the DRC makes no reference whatever to armed attacks that have already occurred against Uganda at the hands of the DRC (or indeed by persons for whose action the DRC is claimed to be responsible). Rather, the position of the High Command is that it is necessary "to secure Uganda’s legitimate security interests". The specified security needs are essentially preventative − to ensure that the political vacuum does not adversely affect Uganda, to prevent attacks from "genocidal elements", to be in a position to safeguard Uganda from irresponsible threats of invasion, to "deny the Sudan the opportunity to use the territory of the DRC to destabilize Uganda". Only one of the five listed objectives refers to a response to acts that had already taken place − the neutralization

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of "Uganda dissident groups which have been receiving assistance from the Government of the DRC and the Sudan".

144. While relying heavily on this document, Uganda nonetheless insisted to the Court that after 11 September 1998 the UPDF was acting in self-defence in response to attacks that had occurred. The Court has already found that the military operations of August in Beni, Bunia and Watsa, and of 1 September at Kisangani, cannot be classified as coming within the consent of the DRC, and their legality, too, must stand or fall by reference to self-defence as stated in Article 51 of the Charter.

145. The Court would first observe that in August and early September 1998 Uganda did not report to the Security Council events that it had regarded as requiring it to act in self-defence.

146. It is further to be noted that, while Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The "armed attacks" to which reference was made came rather from the ADF. The Court has found above (paragraphs 131-135) that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (XXIX) on the definition of aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained nonattributable to the DRC.

147. For all these reasons, 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

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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 selfdefence 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.

[pp. 269] 304. In relation to the third period, following 2 August 1998, the Court has already found that the legal situation after the military intervention of the Ugandan forces into the territory of the DRC was, after 7 August, essentially one of illegal use of force by Uganda against the DRC (see paragraph 149 above). In view of the finding that Uganda engaged in an illegal military operation against the DRC, the Court considers that the DRC was entitled to use force in order to repel Uganda’s attacks. The Court also notes that it has never been claimed that this use of force was not proportionate nor can the Court conclude this from the evidence before it. It follows that any military action taken by the DRC against Uganda during this period could not be deemed wrongful since it would be justified as action taken in self-defence under Article 51 of the United Nations Charter. Moreover, the Court has already found that the facts alleged by Uganda in its counter-claim in respect of this period, namely the participation of DRC regular troops in attacks by anti-Ugandan rebels against the UPDF and the training, arming, equipping, financing and supplying of anti-Ugandan insurgents, cannot be considered as proven (see paragraphs 121-147 above). Consequently, Uganda’s first counter-claim cannot be upheld as regards the period following 2 August 1998.

[pp. 288-289 Decl. Koroma] 8. … Uganda never claimed that it had been the victim of an armed attack by the armed forces of the DRC; the "armed attacks" to which reference was made came rather from the ADF; there was no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC; and the attacks did not emanate from armed bands or irregulars sent by the DRC, or on behalf of the DRC, within the meaning of Article 3

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(g) of General Assembly resolution 3314 (XXIX) of 1974 on the Definition of Aggression. The Court concluded that, on the basis of the evidence before it, even if the series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC.

9. This finding is also consistent with the jurisprudence of the Court. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court stressed the need to recognize a distinction between cases of armed attack and "other less grave forms" of the use of force (Merits, Judgment, I.C.J. Reports 1986, p. 101, para. 191). This distinction was reaffirmed by the Court in 2003 in the case concerning Oil Platforms (Islamic Republic of Iran v. United States of America). According to the Court, it is necessary to distinguish between a State’s massive support for armed groups, including deliberately allowing them access to its territory, and a State’s enabling groups of this type to act against another State. Only the first hypothesis could be characterized as an "armed attack" within the meaning of Article 51 of the Charter, thus justifying a unilateral response. Although the second would engage the international responsibility of the State concerned, it constitutes no more than a "breach of the peace", enabling the Security Council to take action pursuant to Chapter VII of the Charter, without, however, creating an entitlement to unilateral response based on self-defence. In other words, if a State is powerless to put an end to the armed activities of rebel groups despite the fact that it opposes them, that is not tantamount to use of armed force by that State, but a threat to the peace which calls for action by the Security Council. In my opinion, this interpretation is consistent with Article 51 of the Charter and represents the existing law.

[pp. 313-314 S.O. Kooijmans] 25. … the Court refrains from taking a position with regard to the question whether the threshold set out in the Nicaragua Judgment is still in conformity with contemporary international law in spite of the fact that that threshold has been subject to increasingly severe criticism ever since it was established in 1986. The Court thus has missed a chance to fine-tune the position it took 20 years ago in spite of the explicit invitation by one of the Parties to do so.

26. But the sentence quoted in paragraph 20 calls for another comment. Even if one assumes (as I am inclined to do) that mere failure to control the activities of armed bands cannot in

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itself be attributed to the territorial State as an unlawful act, that in my view does not necessarily mean that the victim State is under such circumstances not entitled to exercise the right of self-defence under Article 51. The Court only deals with the question whether Uganda was entitled to act in self-defence against the DRC and replies in the negative since the activities of the rebel movements could not be attributed to the DRC. By doing so, the Court does not answer the question as to the kind of action a victim State is entitled to take if the armed operation by irregulars, "because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 103, para. 195) but no involvement of the "host government" can be proved.

27. The Court seems to take the view that Uganda would have only been entitled to selfdefence against the DRC since the right of self-defence is conditional on an attack being attributable, either directly or indirectly, to a State. This would be in line with what the Court said in its Advisory Opinion of 9 July 2004: "Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of an armed attack by one State against another State" (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I.C.J. Reports 2004, p. 194, para. 139; emphasis added).

28. By implicitly sticking to that position, the Court seems to ignore or even to deny the legal relevance of the question referred to at the end of paragraph 26. But, as I already pointed out in my separate opinion to the 2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Article 51 merely "conditions the exercise of the inherent right of self-defence on a previous armed attack without saying that this armed attack must come from another State even if this has been the generally accepted interpretation for more than 50 years" (I.C.J. Reports 2004, p. 230, para. 35). I also observed that this interpretation no longer seems to be shared by the Security Council, since in resolutions 1368 (2001) and 1373 (2001) it recognizes the inherent right of individual or collective self-defence without making any reference to an armed attack by a State. In these

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resolutions the Council called acts of international terrorism, without any further qualification and without ascribing them to a particular State, a threat to international peace and security.

29. If the activities of armed bands present on a State’s territory cannot be attributed to that State, the victim State is not the object of an armed attack by it. But if the attacks by the irregulars would, because of their scale and effects, have had to be classified as an armed attack had they been carried out by regular armed forces, there is nothing in the language of Article 51 of the Charter that prevents the victim State from exercising its inherent right of self-defence.

30. When dealing with the first counter-claim in paragraph 301 of the Judgment, the Court describes a phenomenon which in present-day international relations has unfortunately become as familiar as terrorism, viz. the almost complete absence of government authority in the whole or part of the territory of a State. If armed attacks are carried out by irregular bands from such territory against a neighbouring State, they are still armed attacks even if they cannot be attributed to the territorial State. It would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State, and the Charter does not so require. "Just as Utopia is entitled to exercise self-defence against an armed attack by Arcadia, it is equally empowered to defend itself against armed bands or terrorists operating from within the Arcadian territory", as Professor Yoram Dinstein puts it54.

31. Whether such reaction by the attacked State should be called self-defence or an act under the state of necessity455 or be given a separate name, for example "extra-territorial law enforcement", as suggested by Dinstein himself, is a matter which is not relevant for the present purpose. The lawfulness of the conduct of the attacked State must be put to the same test as that applied in the case of a claim of self-defence against a State: does the armed action by the irregulars amount to an armed attack and, if so, is the armed action by the attacked State in conformity with the requirements of necessity and proportionality.

54

Yoram Dinstein, War, Aggression and Self-Defence, 3rd. ed., 2002, p. 216.

55

See Oscar Schachter, “The Use of Force against Terrorists in Another Country”, Israel Yearbook on Human Rights, Vol. 19 (1989), p. 225 ff.

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32. As for the first question, I am of the view that the series of attacks which were carried out from June till the beginning of August 1998, and which are enumerated in paragraph 132 of the Judgment, can be said to have amounted to an armed attack in the sense of Article 51, thus entitling Uganda to the exercise of self-defence. Although Uganda, during the proceedings, persistently claimed that the DRC was directly or indirectly involved in these attacks, the finding that this allegation cannot be substantiated and that these attacks are therefore not attributable to the DRC has no direct legal relevance for the question whether Uganda is entitled to exercise its right of self-defence.

33. The next question therefore is: was this right of self-defence exercised in conformity with the rules of international law? During the month of August 1998 Ugandan military forces seized a number of towns and airports in an area contiguous to the border-zone where Uganda had previously operated with the consent of and, according to the Protocol of April 1998, in co-operation with the DRC. Taking into account the increased instability and the possibility of a return to the undesirable conditions of the late Mobutu period, I do not find these actions unnecessary or disproportionate to the purpose of repelling the persistent attacks of the Ugandan rebel movements.

34. It was only when Uganda acted upon the invitation of Rwanda and sent a battalion to occupy the airport of Kisangani − located at a considerable distance from the border area − on 1 September 1998 that it grossly overstepped the limits set by customary international law for the lawful exercise of the right of self-defence. Not by any stretch of the imagination can this action or any of the subsequent attacks against a great number of Congolese towns and military bases be considered as having been necessitated by the protection of Uganda’s security interests. These actions moreover were grossly disproportionate to the professed aim of securing Uganda’s border from armed attacks by anti-Ugandan rebel movements.

35. I therefore fully share the Court’s final conclusion that Uganda’s military intervention was of such a magnitude and duration that it must be considered a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter (Judgment, paragraph 165).

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I feel strongly, however, that the Court, on the basis of the facts and the arguments presented by the Parties and irrespective of the motives ascribed to them, should have gone further than merely finding that Uganda had failed to substantiate its claim that the DRC was directly or indirectly involved in the attacks by the rebel movements and thus concluding that Uganda was not entitled to self-defence. In the circumstances of the case and in view of its complexity, a further legal analysis of Uganda’s position, and the rights ensuing therefrom, would in my view have been appropriate. Thus the Court has forgone a precious opportunity to provide clarification on a number of issues which are of great importance for present-day international society but still are largely obscure from a legal point of view.

[pp. 336-338 S.O. Simma] 7. What […] remains unanswered by the Court is the question whether, even if not attributable to the DRC, such activities could have been repelled by Uganda through engaging these groups also on Congolese territory, if necessary, provided that the rebel attacks were of a scale sufficient to reach the threshold of an "armed attack" within the meaning of Article 51 of the United Nations Charter.

8. Like Judge Kooijmans in paragraphs 25 ff. of his separate opinion, I submit that the Court should have taken the opportunity presented by the present case to clarify the state of the law on a highly controversial matter which is marked by great controversy and confusion − not the least because it was the Court itself that has substantially contributed to this confusion by its Nicaragua Judgment of two decades ago. With Judge Kooijmans, I regret that the Court "thus has missed a chance to fine-tune the position it took 20 years ago in spite of the explicit invitation by one of the Parties to do so" (separate opinion of Judge Kooijmans, para. 25).

9. From the Nicaragua case onwards the Court has made several pronouncements on questions of use of force and self-defence which are problematic less for the things they say than for the questions they leave open, prominently among them the issue of self-defence against armed attacks by non-State actors. 10. The most recent − and most pertinent − statement in this context is to be found in the (extremely succinct) discussion by the Court in its Wall Opinion of the Israeli argument that the separation barrier under construction was a measure wholly consistent with the right of

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States to self-defence enshrined in Article 51 of the Charter (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 194, para. 138). To this argument the Court replied that Article 51 recognizes the existence of an inherent right of self-defence in the case of an armed attack by one State against another. Since Israel did not claim that the attacks against it were imputable to a foreign State, however, Article 51 of the Charter had no relevance in the case of the wall (ibid., para. 139).

11. Such a restrictive reading of Article 51 might well have reflected the state, or rather the prevailing interpretation, of the international law on self-defence for a long time. However, in the light of more recent developments not only in State practice but also with regard to accompanying opinio juris, it ought urgently to be reconsidered, also by the Court. As is well known, these developments were triggered by the terrorist attacks of September 11, in the wake of which claims that Article 51 also covers defensive measures against terrorist groups have been received far more favourably by the international community than other extensive re-readings of the relevant Charter provisions, particularly the "Bush doctrine" justifying the pre-emptive use of force56. Security Council resolutions 1368 (2001) and 1373 (2001) cannot but be read as affirmations of the view that large-scale attacks by non-State actors can qualify as "armed attacks" within the meaning of Article 51.

12. In his separate opinion, Judge Kooijmans points to the fact that the almost complete absence of governmental authority in the whole or part of the territory of certain States has unfortunately become a phenomenon as familiar as international terrorism (separate opinion of Judge Kooijmans, para. 30). I fully agree with his conclusions that, if armed attacks are carried out by irregular forces from such territory against a neighbouring State, these activities are still armed attacks even if they cannot be attributed to the territorial State, and, further, that it "would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State and the Charter does not so require so" (ibid.)57.

56

Th. Bruha/Ch. Tams, “Self-Defence Against Terrorist Attacks. Considerations in the Light of the ICJ’s ‘Israeli Wall’ Opinion”, in: K. Dicke et al. (eds.), Weltinnenrecht. Liber Amicorum Jost Delbrück, Berlin 2005, pp. 84-112, at p. 97.

57

Referring to Y. Dinstein, War, Aggression, and Self-Defence, 3rd ed., 2002, p. 216.

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13. I also subscribe to Judge Kooijmans’ opinion that the lawfulness of the conduct of the attacked State in the face of such an armed attack by a non-State group must be put to the same test as that applied in the case of a claim of self-defence against a State, namely, does the scale of the armed action by the irregulars amount to an armed attack and, if so, is the defensive action by the attacked State in conformity with the requirements of necessity and proportionality? (Ibid., para. 31.)

14. In applying this test to the military activities of Uganda on Congolese territory from August 1998 onwards, Judge Kooijmans concludes − and I agree − that, while the activities that Uganda conducted in August in an area contiguous to the border may still be regarded as keeping within these limits, the stepping up of Ugandan military operations starting with the occupation of the Kisangani airport and continuing thereafter, leading the Ugandan forces far into the interior of the DRC, assumed a magnitude and duration that could not possibly be justified any longer by reliance on any right of self-defence. Thus, at this point, our view meets with, and shares, the Court’s final conclusion that Uganda’s military intervention constitutes " a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter" (Judgment, paragraph 165).

15. What I wanted to demonstrate with the preceding reasoning is that the Court could well have afforded to approach the question of the use of armed force on a large scale by non-State actors in a realistic vein, instead of avoiding it altogether by a sleight of hand, and still arrive at the same convincing result. By the unnecessarily cautious way in which it handles this matter, as well as by dodging the issue of "aggression", the Court creates the impression that it somehow feels uncomfortable being confronted with certain questions of utmost importance in contemporary international relations.

[pp. 373 D.O. Kateka] 39. Equally, the Court has accused Uganda of not reporting to the Security Council events that it had regarded as requiring it to react in self-defence. In this connection, I wish to quote from Judge Schwebel’s dissenting opinion in the Nicaragua case: "A State cannot be deprived, and cannot deprive itself, of its inherent right [nothing in the Charter shall impair that inherent right, including the requirement of reporting to the Security Council the measures taken] of individual or collective self-defence because of its failure to report measures taken in the exercise of that right to the

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Security Council." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 377, para. 230.) This reporting requirement has been abused by aggressor States to justify themselves that by reporting, they had complied with Article 51 of the Charter concerning self-defence. Hence this requirement should be handled with caution when it comes to issues of self-defence. In practice, in some cases, some States are not aware that they are required to report measures taken. While this is not an excuse, it should be regarded as an extenuating circumstance.

6.3. Intervention

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 226-227] 161. 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.

162. Thus the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations (hereinafter "the Declaration on Friendly Relations") provides that: "Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force." (General Assembly resolution 2625 (XXV), 24 October 1970.) 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.).

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These provisions are declaratory of customary international law.

163. 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.

164. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) case, 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). 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).

165. In relation to the first of the DRC’s final submissions, the Court accordingly concludes that Uganda has violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an interference in the internal affairs of the DRC and in the civil war there raging. The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.

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7. LAW OF TREATIES 7.1. General Questions

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[p. 68] 88. Both Parties agree that the 1913 Anglo–Ottoman Convention was never ratified (see paragraphs 46 and 47 above); they differ on the other hand as to its value as evidence of Qatar's sovereignty over the peninsula.

89. The Court observes that signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature. In the circumstances of this case the Court has come to the conclusion that the Anglo– Ottoman Convention does represent evidence of the views of Great Britain and the Ottoman Empire as to the factual extent of the authority of the Al–Thani Ruler in Qatar up to 1913.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 212] 102. The Luanda Agreement, a bilateral agreement between the DRC and Uganda on "withdrawal of Ugandan troops from the Democratic Republic of the Congo, co-operation and normalisation of relations between the two countries", alters the terms of the multilateral Lusaka Agreement. The other parties offered no objection.

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Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002 [pp. 489-490 Decl. Rezek] It is rare to find in classic international law propositions as flimsy – and as inadmissibly so in moral terms – as those which would have it that agreements entered into the past between colonial Powers and indigenous communities – organized communities which had been masters of their territories for centuries and were subject to a recognoized authority – are not treaties, because « native chiefs and tribes are neither States nor International Organizations ; and thus possess no treaty-making capacity » ( The Law of Treaties, 1961, p. 53). While expressing in these terms the doctrine prevailing in Europe in his time, Arnold McNair nevertheless pointed out that the matter had been understood differently in the United States, where indigenous communities were recognized as foreign nations until promulgation of the Indian Appropriations Act of 3 March 1871, which made them wards of, and integrated them into, the Union. The agreements which these comunities had entered into with the Federal Government were regarded as treaties, to be honoured as such ; moreover, if they required interpretation, the Supreme Court applied the rule contra proferentem. In the Western Sahara case, the Court appears to have rejected the notion that a European Power could unilaterally appropriate a territory inhabited by indigenous communities. It found that even nomadic tribes inhabiting a territory and having a social and political organization had a personality sufficient under international law for their territory not to be considered terra nullius. According to that jurisprudence, title of sovereignty over a territory thus inhabited cannot therefore be acquired by occupation but only «through agreements concluded wih local rulers » (I.C.J. Reports 1975, p. 39, para. 80). In the present case, the Bakassi Peninsula was part of the territory of Old Calabar, subject to the original rule of its Kings and Chiefs. The Applicant itself, paradoxically required by the circumstances to espouse some particularly unacceptable propositions of colonialist discourse, has sought to cast doubt on the existence and independence of that rule by recourse to considerations which, rather, confirm them. Moreover, only the 1884 Treaty, concluded with that form of local rule, could have justified the functions assumed by Great Britain when it became the protecting State of those territories, for, if the Kings and Chiefs of Old Calabar did not have capacity to enter into an international agreement, if the 1884 Treaty was not a treaty

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and had no legal force whatsoever, it must be asked what was the basis for Great Britain to assert its authority over these territories, by what mysterious divine right did it set itself up as the protecting State of these areas of Africa. Pursuant to the 1884 Treaty, Great Britain bestowed upon itself the power to oversee the African nation’s foreign relations, without granting itself authority to negotiate in its name, let alone to settle or relinquish any claim of whatever nature during international negotiations, and in particular to dispose of any part of the nation’s territory. The unlawfulness of the act of cession renders the Anglo-German Treaty of 11 March 1913 invalid in so far as, in defining the last sector of the land boundary, it determines the treatment of Bakassi. The defect in the provisions concerning the Bakassi Peninsula does not however affect the validity of the remainder of the Treaty. This is the situation provided for in Article 44 (3) (a) of the Vienna Convention on the Law of Treaties, which could in theory be overridden by the effect of the next subparagraph, were it possible to show that the cession of Bakassi was an essential condition of Germany’s consent to the rest of the Treaty ; but, as far as I recall, no one so argued.

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7.3. Conclusion

7.4. Reservations

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[p. 244] 65. Whereas both the Congo and Rwanda are parties to the Convention on Racial Discrimination; whereas the Congo acceded to that Convention on 21 April 1976 and Rwanda on 16 April 1975; whereas however Rwanda’s instrument of accession to the Convention, deposited with the United Nations Secretary–General, includes a reservation reading as follows: "The Rwandese Republic does not consider itself as bound by article 22 of the Convention";

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66. Whereas in the present proceedings the Congo has challenged the validity of that reservation (see paragraph 25 above);

67. Whereas the Convention on Racial Discrimination prohibits reservations incompatible with its object and purpose; whereas under Article 20, paragraph 2, of the Convention, "[a] reservation shall be considered incompatible ... if at least two–thirds of the States Parties to this Convention object to it"; whereas such has not been the case in respect of Rwanda’s reservation concerning the jurisdiction of the Court; whereas that reservation does not appear incompatible with the object and purpose of the Convention; whereas the Congo did not object to that reservation when it acceded to the Convention; and whereas Rwanda’s reservation is prima facie applicable;

[p. 245-246] 69. Whereas both the Congo and Rwanda are parties to the Genocide Convention; whereas the Congo acceded to that Convention on 31 May 1962 and Rwanda on 16 April 1975; whereas however Rwanda’s instrument of accession to the Convention, deposited with the United Nations Secretary–General, includes a reservation worded as follows: "The Rwandese Republic does not consider itself as bound by article IX of the Convention";

70. Whereas in the present proceedings the Congo has challenged the validity of that reservation (see paragraph 22 above);

71. Whereas "the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and whereas a consequence of the conception thus adopted 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); whereas it follows "that the rights and obligations enshrined by the Convention are rights and obligations erga omnes" (Application of the Convention on the Prevention and

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Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 31); whereas however, as the Court has already had occasion to point out, "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); whereas it does not follow from the mere fact that rights and obligations erga omnes are at issue in a dispute that the Court has jurisdiction to adjudicate upon that dispute; whereas, as the Court has noted above (paragraph 57), it has jurisdiction in respect of States only to the extent that they have consented thereto; and whereas, 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 in that clause;

72. Whereas the Genocide Convention does not prohibit reservations; whereas the Congo did not object to Rwanda’s reservation when it was made; whereas that reservation does not bear on the substance of the law, but only on the Court’s jurisdiction; whereas it therefore does not appear contrary to the object and purpose of the Convention; whereas it is immaterial that different solutions have been adopted for courts of a different character; whereas, specifically, it is immaterial that the International Criminal Tribunal for crimes committed in Rwanda was established at Rwanda’s request by a mandatory decision of the Security Council or that Article 120 of the Statute of the International Criminal Court signed at Rome on 17 July 1998 prohibits all reservations to that Statute;

[pp. 286-287 S.O. Mavungu] 53. It is well established that a reservation to an international treaty is acceptable only if it is not incompatible with the object and purpose of that treaty58. It is true, as the Court points out, that the Genocide Convention does not prohibit reservations (see paragraph 72 of the Order). But that does not mean that States may make whatever

58

See Article 19, (c) , of the Vienna Convention on the Law of Treaties of 23 May 1969. On reservations, see inter alia Suzanne Bastid, Les traités dans la vie internationale. Conclusion et effets, 1985, p. 71–77. Pierre–Henri Imbert, Les réserves aux traités multilatéraux, 1979; Daniel Kappeler, Les réserves dans les traités internationaux, 1957; José–Maria Ruda, «Reservations to treaties», RCADI, vol. 146, 1975, p. 139–148.

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reservations they please. Moreover, the Court stated as much in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide : «It has nevertheless been argued that any State entitled to become a party to the Genocide Convention may do so while making any reservation it chooses by virtue of its sovereignty. The Court cannot share this view. It is obvious that so extreme an application of the idea of State sovereignty could lead to a complete disregard of the object and purpose of the Convention. « (I.C.J. Reports 1951, p. 24.)

54. The object and purpose of the 1948 Convention is, on the one hand, to clarify the notion of genocide and, on the other, to induce States parties to prevent any act of genocide and, in the event of failure to do so, to punish it. The mechanism for the settlement of disputes between States provided for by the Convention is an essential element in its application, and thus in ensuring its respect by States parties

*

7.5. Application

7.6. Invalidity

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 400-401] 196. Nigeria further contends that, under contemporary German domestic legislation, all treaties providing for cession or acquisition of colonial territory by Germany had to be approved by Parliament. It points out that the Anglo–German Agreement of 11 March 1913 was not so approved. It argues that the Agreement involved the acquisition of colonial territory, namely the Bakassi Peninsula, and accordingly ought to have been "approved by the German Parliament, at least so far as its Bakassi provisions were concerned". Cameroon’s position was that "the German Government took the view that in the case of Bakassi the issue was one of simple boundary rectification, because Bakassi had already been treated previously as belonging de facto to Germany"; and thus parliamentary approval was not required.

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197. The Court notes that Germany itself considered that the procedures prescribed by its domestic law had been complied with; nor did Great Britain ever raise any question in relation thereto. The Agreement had, moreover, been officially published in both countries. It is therefore irrelevant that the Anglo–German Agreement of 11 March 1913 was not approved by the German Parliament. Nigeria’s argument on this point accordingly cannot be upheld.

[p. 429-430] 264. The Court cannot accept the argument that the Maroua Declaration was invalid under international law because it was signed by the Nigerian Head of State of the time but never ratified. 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 Law of Treaties leave it completely up to States which procedure they want to follow. Under the Maroua Declaration, "the two Heads of State of Cameroon and Nigeria agreed to extend the delineation of the maritime boundary between the two countries from Point 12 to Point G on the Admiralty Chart No. 3433 annexed to this Declaration". In the Court’s view, that Declaration entered into force immediately upon its signature.

[pp. 430-431] 265. The Court will now address Nigeria’s argument that its constitutional rules regarding the conclusion of treaties were not complied with. In this regard the Court recalls that Article 46, paragraph 1, of the Vienna Convention provides that "[a] State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent". 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

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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. 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).

266. Nigeria further argues that Cameroon knew, or ought to have known, that the Head of State of Nigeria had no power legally to bind Nigeria without consulting the Nigerian Government. In this regard the Court notes that there is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States which are or may become important for the international relations of these States. 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. And in particular they could not be understood as relating to any

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commitment to be made at Maroua nine months later. The letter in question in fact concerned a meeting to be held at Kano, Nigeria, from 30 August to 1 September 1974. This letter seems to have been part of a pattern which marked the Parties’ boundary negotiations between 1970 and 1975, in which the two Heads of State took the initiative of resolving difficulties in those negotiations through person–to–person agreements, including those at Yaoundé II and Maroua.

267. The Court further observes that in July 1975 the two Parties inserted a correction in the Maroua Declaration, that in so acting they treated the Declaration as valid and applicable, and that Nigeria does not claim to have contested its validity or applicability prior to 1977.

268. In these circumstances the Maroua Declaration, as well as the Yaoundé II Declaration, have to be considered as binding and as establishing a legal obligation on Nigeria.

[pp. 490-491 Decl. Rezek] Further, I am unable to regard the Maroua Declaration of 1 June 1975 as a treaty, and therefore to draw the resultant inferences. I even have some difficulty in viewing it as a treaty which was signed but never entered into force, failing ratification by the two parties. Rather, I see it as a declaration by the two Heads of States, further to other similar declarations that were never followed up, thus demonstrating that they were not definitive as sources of law. True, formal adoption of the document by the organs vested with treatymaking powers would have given rise to a conventional instrument. That is to say that, no matter what the title or form of a text, no matter what procedure was followed in negotiating it, that text can obviously become a treaty if the parties’ competent organs ultimately express their consent. Here, the Respondent has stated, without being challenged, that the Maroua Declaration was not ratified by Nigeria, failing approval by the competent organ under the constitution in force at the time. The Vienna Convention provides a remarkably simple definition of the unusual circumstances under which a State can deny the legal force of a treaty by reason of flawed consent of this sort. The internal rule which was not respected must be a fundamental one and its violation must have been manifest, i.e., the other party could not under normal circumstances have been

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unaware of the violation. It is my view, however, that Cameroon was not entitled to believe that the Declaration in question was indeed a perfected treaty, entering into force on the date of its signing. I know of no legal order which authorizes a representative of a Government alone definitively to conclude and put into effect, on the basis of his sole authority, a treaty concerning a boundary, whether on land or at sea – and ergo the territory – of the State. I ask myself whether there is any part of the world where such a failure to respect the most basic formalities would be compatible with the complex and primordial nature of an international boundary treaty. It is to be expected that the case concerning the Legal Status of Eastern Greenland (P.C.I.J., Series A/B, No. 53, p. 22) would be referred to in a discussion of this sort. It is sometimes forgotten that the Court never said that one of the ways in which treaties could be concluded was by oral agreement. It said that Norway was bound by the guarantees given by the Norvegian Minister to the Danish ambassador. Thus, there are other, less formal, ways by which a State can create international obligations for itself. That is not the issue. The question is whether an international agreement concerning the determination of a boundary can take a form other than that of a treaty in the strict sense, even when the land or maritime areas concerned are not large or when the boundary has not been the subject of long-standing dispute and uncertainty.

[p. 592-593 D.O. Ajibola] 167. The Supreme Military Council was the ultimate executive body vested with the power to ratify any agreement made by the Head of State. The Maroua Declaration was not ratified by this Council. Hence the Declaration had no binding force on Nigeria, contrary to the decision of the Court.

168. Thus, by virtue of Article 46 of the Vienna Convention on the Law of Treaties, internationally, the Maroua Declaration is not opposable and therefore not enforceable against Nigeria.

[pp. 493-495 S.O. Al–Khasawneh] 2. The Court chose, quite unnecessarily, to revert to the question of the validity of the 1913 Agreement between Great Britain and Germany under which the former ceded the entire territory of the Kings and Chiefs of Old Calabar – which territory corresponds to the Bakassi Peninsula – to Germany without the consent of those Kings and Chiefs, notwithstanding that Great Britain had entered earlier into a Treaty of

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Protection with them in 1884 under which, in return for their agreeing and promising "to refrain from entering into any correspondence, Agreement or Treaty, with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government", Her Majesty would extend Her "favour and protection" to them. It must be noted here that the 1884 Treaty was concluded by the British Consul expressly as the representative of Queen Victoria.

3. Reversion to those treaties was not only unnecessary as I stated earlier, it was also unfortunate, for the attempt at reconciling a duty of protection on the one hand with, on the other, the subsequent alienation of the entire territory of the protected entity – regardless of whether that entity possessed international legal personality or not – cannot be an easy matter, not only due to the moral difficulties that such an attempt would entail, but also, as a matter of law, because the distinction between colonies, protectorates and the so–called "colonial protectorates" is steeped in confusion both under international law and under the laws of the colonial Powers themselves, the confusion arising mainly from the fact that it was considerations of pragmatism and political convenience that determined the status of those territories, though problems of nomenclature are also a contributory factor. Needless to say, such confusion engenders doubt as to whether the colonial/protecting Power possessed or even claimed title. In addition, if the Judgment is to constitute a legally and morally defensible scheme, it cannot merely content itself with a formalistic appraisal of the issues involved. Such issues include the true scope of intertemporal law and the extent to which it should be judged by contemporary values that the Court ought to foster; an ascertainment of State practice at the relevant time and the role of the Berlin Conference on West Africa of 1885; the question, whether that practice – assuming it permitted the acquisition of title in the so–called colonial protectorates – could be invoked in an African case when no African State had participated in the formation of such alleged practice; the relevance of the fundamental rule pacta sunt servanda on the passing of title and the normative value to be attached to the consistent practice of the colonial Power in question (Great Britain) of distinguishing between colonies on the one hand and protectorates on the other. Only when a serious attempt has been made to analyse this host of relevant and interrelated considerations can it be said that the question repeatedly and forcefully posed by Sir Arthur Watts as counsel for Nigeria - Who gave Great Britain the right to give away Bakassi? And when? And how? – would be answered. To my

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mind, the Judgment, by taking for granted such premises as the existence of a category of protectorates indistinguishable from colonies, or the right of colonial Powers to deal with African potentates on the basis that the fundamental rule pacta sunt servanda does not exist, has failed to answer that question. To the extent that these are central issues in this case and have implications that go beyond it, I feel I must append my thoughts on them in a separate opinion.

4. It is evident that the Bakassi Peninsula was not a terra nullius when Great Britain entered into a Treaty of Protection with the Kings and Chiefs of Old Calabar in 1884. As Judge Dillard cogently summarized the matter in his separate opinion in the Western Sahara case: "[a]s was cryptically put in the proceedings: you do not protect a terra nullius. On this point there is little disagreement." (Advisory Opinion, I.C.J. Reports 1975, p. 124.) Yet it was also in that Advisory Opinion that the Court implied, at least prima facie that, even if the territory in question was not a terra nullius, this would not in itself preclude the colonial Power from acquiring a derivative root of title, as opposed to an original title, which could be obtained only by occupation (presumably effective occupation of terrae nullius) (ibid., p. 39, para. 80). In the present case, the Judgment has relied mainly on that passage (paragraph 205) in support of the contention that, the absence of a terra nullius status notwithstanding, Great Britain had in fact acquired sovereignty to the Bakassi Peninsula through a derivative root of title. Prima facie, Western Sahara may seem to lend support to such a proposition. Though it should not be forgotten that the passage cited was an obiter dictum. Secundo facie, however, the support lent seems negligible indeed, for in that instance the Court was not enquiring whether Spain held valid legal title but was answering a distinct, specific question: Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)? Indeed in paragraph 82 of that Opinion the Court expressly declined to pronounce upon "the legal character or the legality of the titles which led to Spain becoming the administering Power of Western Sahara" (I.C.J. Reports 1975, p. 40, para. 82), even though there was much material before it on this precise question as well as requests to answer it. Moreover, when the Court said that "in the case of such territories (territories that are not terrae nullius) the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’ of terra nullius by original title but through agreements concluded with local rulers" (ibid., p. 39, para. 80), it was referring in general to agreements that had the effect of passing title from those rulers who possessed it on the basis of original

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title to the new administering/protecting Powers, who through such agreements acquired derivative title. Clearly the crucial factor is the agreement itself, and whilst it is entirely possible that such agreements vested sovereignty in the newcomers it is equally possible that they did not, in which case sovereignty was retained by the local ruler under an agreed scheme of protection or administration. These are questions of treaty interpretation and of the subsequent practice of the parties and cannot be circumvented by the invention of a fictitious sub–category of protectorates termed "colonial protectorates" where title is assumed to pass automatically and regardless of the terms of the treaty of protection to the protecting Power, for that would be incompatible with the fundamental rule pacta sunt servanda and would lead to what has been termed "institutionalized treaty breach", a situation that no rule of intertemporal law has ever excused. It would also blur the distinction that the Court was trying to make between title automatically assumed on the basis of effective occupation on the one hand, and title assumed on the basis of agreement with local rulers on the other.

[pp. 500-502 S.O. Al–Khasawneh] 11. Let me start by recalling that the concept of the intertemporal law is an irretrievably elusive one. At first sight it looks simple. To quote Max Huber once more: "A juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when such a dispute in regard to it arises or falls to be settled." (RIAA, Vol. II, p. 845.)

12. At a general level, the proposition is sustainable, but when we come to enquire more closely into its operation, problems start to arise: is appreciation in the light of the law contemporary with the judicial act, e.g., a treaty of protection, the same as interpretation of such a treaty in the light of contemporaneous law? Or does it merely mean that in interpreting a treaty of the past one should be mindful, in applying the time–honoured and established canons of treaty interpretation, of the temporal context that may shed light on the presumed intention of the parties and thus help ascertain it? Should such a legal act (a treaty) be interpreted against the background that the object and purpose of the treaty was the guaranteeing or upholding of a certain principle, e.g., that the mandate system is a "sacred trust of civilization" (Legal Consequences for States of the Continued Presence South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 16)? Similarly, in interpreting a treaty of protection should not the law contemporary with the legal act be read against the background of the concept of protection

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which, like the concept of the mandate, connotes an element of guardianship59 traceable to the great Roman jurist Ulpian who said: "for certain purposes of the law some cities and municipalities are to be treated as minors". A concept that therefore excludes notions of ownership. It should not be forgotten that, in appreciating the law contemporary with the 1884 Treaty, we should be mindful that the ancient concept of protection antedates the Berlin Conference; thus, to cite a few examples, Great Britain had established a protectorate over the Ionian Islands in 1814 which was maintained in accordance with the classical concept of protection which excluded any notion of sovereignty of the protecting Power, and much earlier during the Muslim Conquests many agreements of protection were concluded with local rulers in certain parts of Europe and elsewhere60. After 1885, State practice, to use the words of one commentator "revealed a tendency to deform the original classic concept of the protectorate and to convert it into an instrument of colonialism’" (Alexandrowicz, The Role of Treaties in the European–African Confrontation in the Nineteenth Century, African International Legal History, p. 55, cited by Malcolm Shaw in Title to Territory in Africa, p. 47; emphasis added). Would then the operation of intertemporal law not require us as judges to appraise not just the practice but the fact that it was a deformation of the concept and practice of protection against the background that the object of the protectorate system - like the mandatory system - is a form of guardianship that by definition excludes notions of territorial ownership or territorial dominion? To my mind this is the relevant law that should be appreciated as a consequence of the rule of intertemporal law and it cannot be reduced to a mere review of a deformation, half–Kafkaesque, half–Orwellian, where friendship means interference in the internal affairs and protection means loss of sovereignty and dismemberment and the conclusion of treaties means instantaneous breach. Put differently, ascertainment of the true meaning of intertemporal law requires us to enquire into the quality

59

Oppenheim’s International Law, Sir Robert Jennings and Sir Arthur Watts (eds.), 9th ed., Vol. I, p. 267.

60

For example, The Treaty of Tudmir of Rajab 94 AH–April 731 AD, concluded between Abdulaziz Son of Musa Son of Nusair the Ummayyad Governor of Spain and Theodemir, representative of local fortress–chiefs in South East Spain, an area encompassing the modern region of Murcia, Alicante and Valencia; the pact itself transformed political power from the Hispanic Visigoths to the Ummayyads of Damascus, but rights in property and other rights were retained by those chiefs and their descendants. For the text of the treaty see Negotiating Cultures, Bilingual Surrender Treaties in Moslem — Crusader Spain Under James the Conqueror, edited by Robin Burns and Paul Cliveddan, p. 202. Many similar treaties of protection were entered into by the Ottomans with various principalities in Eastern Europe where dominion in the sense of power passed to the Ottomans but ownership rights and other rights were retained by the indigenous European chiefs.

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of the juridical act in the light not only of the alleged practice, but in the light of the totality of the law relating to protection i.e., with reference to its object and taking into account other rules relevant at the time.

7.7. Suspension and Termination

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 401] 198. In relation to the Treaty of Versailles, Nigeria points out that Article 289 thereof provided for "the revival of pre–war bilateral treaties concluded by Germany on notification to Germany by the other party". It contends that, since Great Britain had taken no steps under Article 289 to revive the Agreement of 11 March 1913, it was accordingly abrogated; thus Cameroon "could not have succeeded to the [Agreement] itself". Cameroon argues that Article 289 of the Treaty of Versailles did not have any legal effect on the Agreement of 11 March 1913, because "the scope of this Article was limited to treaties of an economic nature in the broad sense of the term" which in Cameroon’s view was confirmed by the context of the Article, its position within the scheme of the Treaty, its drafting history and its object and purpose in light of the Treaty as a whole.

199. The Court notes that since 1916 Germany had no longer exercised any territorial authority in Cameroon. Under Articles 118 and 119 of the Versailles Treaty, Germany relinquished its title to its overseas possessions. As a result, Great Britain had no reason to include the Anglo–German Agreement of 11 March 1913 among the "bilateral treaties or conventions" which it wished to revive with Germany. Thus it follows that this argument of Nigeria must in any event be rejected.

7.8. Interpretation

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[pp. 501-502] 99. 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 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.

100. The French text of Article 41 reads as follows: "1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires due droit de chacun doivent être prises à titre provisoire. 2. En attendant l'arrêt définitif, l'indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité." (Emphasis added.) In this text, the terms "indiquer" and "l'indication" may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words "doivent être prises" have an imperative character. For its part, the English version of Article 41 reads as follows: "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.)

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According to the United States, the use in the English version of "indicate" instead of "order", of "ought" instead of "must" or "shall", and of "suggested" instead of "ordered", is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as "indicate" and "ought" have a meaning equivalent to "order" and "must" or "shall".

101. 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. 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". The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41.

102. 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

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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.

103. 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 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). 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 between 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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104. 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.

[pp. 519 S.O. Shi] 3. In paragraph 77 of the Judgment, the Court, basing its interpretation of the subparagraph on the clarity of meaning of the text of the provision read in context, upheld that claim by Germany. I can readily accept this finding of the Court only if its interpretation of Article 36, paragraph 1 (b), is appropriate in the present case. Undoubtedly, the Court's interpretation is consistent with the well–known jurisprudence of this Court and of its predecessor that, if the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter and there is no need to resort to other methods of interpretation (Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8). However, in my view, indiscriminate reliance on such a dictum in any circumstances may not always be dependable or helpful in determining the true intention of the parties to a treaty. It can happen that for one reason or another – e.g., hasty or careless drafting, last–minute compromise in negotiations – the meaning clearly apparent from the text does not necessarily reflect that which the parties intended it to bear. Recourse to customary rules of interpretation as reflected in Article 31 of the Vienna Convention on the Law of Treaties may seem superfluous when the normal meaning of the text appears to be clear, but it does serve as a double check to prevent any possibility of misinterpretation.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Application by the Philippines for Permission to Intervene Judgment of 23 October 2001

[p. 596] 47. The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an "interest of a legal nature" of the State seeking to

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intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The English text of Article 62 refers in paragraph 1 to "an interest of a legal nature which may be affected by the decision in the case". The French text for its part refers to "un intérêt d’ordre juridique ... en cause" for the State seeking to intervene. The word "decision" in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[pp. 345-346] 57. Cameroon’s position is that the mouth of the Ebeji should be specified by the Court as lying on the co–ordinates determined for that purpose by the LCBC, that being an "authentic interpretation" of the Declaration and 1931 Exchanges. The Court has already indicated why the Report of the Marking Out of Boundaries by the LCBC is not to be so regarded. Cameroon asks the Court to find that "in the alternative, the mouth of the Ebeji is situated at the point located at the co–ordinates 12° 31’ 12" N and 14° 11’ 48" E". Thus Cameroon prefers, in its alternative argument, the "mouth" of the western channel, and bases itself on tests adduced by this Court in the case concerning Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J. Reports 1999, pp. 1064–1072, paras. 30–40) for identifying "the main channel". In particular, it refers to greater flow and depth of this channel. Nigeria, on the other hand, requests the Court to prefer the mouth of the longer, eastern channel as "the mouth" of the River Ebeji, finding support for that proposition in the Palena arbitration of 9 December 1966,

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which spoke of the importance of length, size of drainage area, and discharge (38 International Law Reports (ILR), pp. 93–95).

59. The Court notes that the text of the Thomson–Marchand Declaration of 1929– 1930, incorporated in 1931 in the Henderson–Fleuriau Exchange of Notes, refers to "the mouth of the Ebeji". Thus the task of the Court is not, as in the Kasikili/Sedudu Island case, to determine the "main channel" of the river but to identify its "mouth". In order to interpret this expression, the Court must seek to ascertain the intention of the parties at the time. The text of the above instruments as well as the Moisel map annexed to the Milner–Simon Declaration and the map attached to the Henderson– Fleuriau Exchange of Notes show that the parties only envisaged one mouth. The Court notes that the co–ordinates, as calculated on the two maps, for the mouth of the Ebeji in the area just north of the site indicated as that of Wulgo are strikingly similar. Moreover these co–ordinates are identical with those used by the LCBC when, in reliance on those same maps, it sought to locate the mouth of the Ebeji as it was understood by the parties in 1931. The point there identified is north both of the "mouth" suggested by Cameroon for the western channel in its alternative argument and of the "mouth" proposed by Nigeria for the eastern channel.

60. On the basis of the above factors, the Court concludes that the mouth of the River Ebeji, as referred to in the instruments confirmed in the Henderson–Fleuriau Exchange of Notes of 1931, lies at 14° 12’ 12" longitude east and 12° 32’ 17" latitude north.

[pp. 404] 203. 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.

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In turn, under Article II of the Treaty of 10 September 1884, "The King and Chiefs of Old Calabar agree[d] and promise[d] to refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government." The Treaty with the Kings and Chiefs of Old Calabar did not specify the territory to which the British Crown was to extend "gracious favour and protection", nor did it indicate the territories over which each of the Kings and Chiefs signatory to the Treaty exercised his powers. However, the consul who negotiated and signed the Treaty, said of Old Calabar "this country with its dependencies extends from Tom Shots ... to the River Rumby (on the west of the Cameroon Mountains), both inclusive". Some six years later, in 1890, another British consul, Johnston, reported to the Foreign Office that "the rule of the Old Calabar Chiefs extends far beyond the Akpayafe River to the very base of the Cameroon Mountains". The Court observes that, while this territory extends considerably eastwards of Bakassi, Johnston did report that the Old Calabar Chiefs had withdrawn from the lands east of the Ndian. Bakassi and the Rio del Rey lay to the west of the Ndian, an area referred to by Johnston as "their real, undoubted territory". In the view of the Court Great Britain had a clear understanding of the area ruled at different times by the Kings and Chiefs of Old Calabar, and of their standing.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002

[pp. 645-646] 37. The Court notes that Indonesia is not a party to the Vienna Convention of 23 May 1969 on the Law of Treaties; the Court would nevertheless recall that, in accordance with customary international law, reflected in Articles 31 and 32 of that Convention: "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. 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

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the preparatory work of the treaty and the circumstances of its conclusion." (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21–22, para. 41; see also Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 18, para. 33; 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 1999 (II), p. 1059, para. 18.) Moreover, with respect to Article 31, paragraph 3, the Court has had occasion to state that this provision also reflects customary law, stipulating that there shall be taken into account, together with the context, the subsequent conduct of the parties to the treaty, i.e., "any subsequent agreement" (subpara. (a)) and "any subsequent practice" (subpara. (b)) (see in particular Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 (I), p. 75, para. 19; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1075, para. 48). Indonesia does not dispute that these are the applicable rules. Nor is the applicability of the rule contained in Article 31, paragraph 2, contested by the Parties.

[p. 653] 53. In view of the foregoing, the Court does not consider it necessary to resort to supplementary means of interpretation, such as the travaux préparatoires of the 1891 Convention and the circumstances of its conclusion, to determine the meaning of that Convention; however, as in other cases, it considers that it can have recourse to such supplementary means in order to seek a possible confirmation of its interpretation of the text of the Convention (see for example Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, p. 27, para. 55; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 21, para. 40).

[pp. 667-668] 88. The Court would begin by recalling, as regards the legal value of maps, that it has already had occasion to state the following:

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"maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts." (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J.

Reports

1986,

p.

582,

para.

54;

Kasikili/Sedudu

Island

(Botswana/Namibia), Judgment, I.C.J. Reports 1999 (II), p. 1098, para. 84). In the present case, the Court observes that no map reflecting the agreed views of the parties was appended to the 1891 Convention, which would have officially expressed the will of Great Britain and the Netherlands as to the prolongation of the boundary line, as an allocation line, out to sea to the east of Sebatik Island.

89. In the course of the proceedings, the Parties made particular reference to two maps: the map annexed to the Explanatory Memorandum appended by the Netherlands Government to the draft Law submitted to the States–General for the ratification of the 1891 Convention, and the map annexed to the 1915 Agreement. The Court has already set out its findings as to the legal value of these maps (see paragraphs 47, 48 and 72 above).

90. Turning now to the other maps produced by the Parties, the Court observes that Indonesia has submitted a certain number of maps published after the 1891 Convention showing a line continuing out to sea off the eastern coast of Sebatik Island, along the parallel of 4° 10' latitude north. These maps include, for example, those of Borneo

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made by Stanford in 1894, in 1903 and in 1904, and that of 1968 published by the Malaysian Ministry of Lands and Mines to illustrate oil–prospecting licences.

The Court notes that the manner in which these maps represent the continuation out to sea of the line forming the land boundary varies from one map to another. Moreover, the length of the line extending out to sea varies considerably: on some maps it continues for several miles before stopping approximately halfway to the meridians of Ligitan and Sipadan, whilst on others it extends almost to the boundary between the Philippines and Malaysia. For its part, Malaysia has produced various maps on which the boundary line between the British and Dutch possessions in the region stops on the eastern coast of Sebatik Island. These maps include the map of British North Borneo annexed to the 1907 Exchange of Notes between Great Britain and the United States, the Dutch map of 1913 representing the Administrative Structure of the Southern and Eastern Borneo Residence, and the map showing the 1915 boundary line published in the Official Gazette of the Dutch Colonies in 1916. The Court however considers that each of these maps was produced for specific purposes and it is therefore unable to draw from those maps any clear and final conclusion as to whether or not the line defined in Article IV of the 1891 Convention extended to the east of Sebatik Island. Moreover, Malaysia was not always able to justify its criticism of the maps submitted by Indonesia. Malaysia thus contended that the line shown on the Stanford maps of 1894, 1903 and 1904, extending out to sea along the parallel of 4° 10' latitude north, corresponded to an administrative boundary of North Borneo, but could not cite any basis other than the 1891 Convention as support for the continuation of that State’s administrative boundary along the parallel in question.

91. In sum, with the exception of the map annexed to the 1915 Agreement (see paragraph 72 above), the cartographic material submitted by the Parties is inconclusive in respect of the interpretation of Article IV of the 1891 Convention.

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Law of Treaties Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 237-238 S.O. Higgins] ] 45. It is a common place that treaties are to be interpreted by reference to the rules enunciated in Article 31 of the Vienna Convention on the Law of Treaties, which Article is widely regarded as reflecting general international law. Article 31, paragraph 3 (c), on which the Court places emphasis, states that, in interpreting a treaty, "There shall be taken into account, together with the context, ... any relevant rules of international law applicable in the relations between the parties."

46. The Court reads this provision as incorporating the totality of the substantive international law (which in paragraph 42 of the Judgment is defined as comprising Charter law) on the use of force. But this is to ignore that Article 31, paragraph 3, requires "the context" to be taken into account: and "the context" is clearly that of an economic and commercial treaty. What is envisaged by Article 31, paragraph 3 (c), is that a provision that requires interpretation in Article XX, paragraph 1 (d), will be illuminated by recalling what type of a treaty this is and any other "relevant rules" governing Iran–United States relations. It is not a provision that on the face of it envisages incorporating the entire substance of international law on a topic not mentioned in the clause – at least not without more explanation than the Court provides.

47. Having recounted the differing views of the Parties on the role of the Charter and customary international law in relation to Article XX, paragraph 1 (d), the Court states that the matter is really "one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (d)" (para. 40). But the reality is that the Court does not attempt to interpret Article XX, paragraph 1 (d). It is not until paragraph 73 that there is any legal reference at all to the text of that provision. The intervening 20 pages have been spent on the international law of armed attack and self– defence and its application, as the Court sees it, to the events surrounding the United States attacks on the oil platforms.

48. An interpretation "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties) would surely have led to a scrutiny of the very terms of Article XX, paragraph 1 (d), especial attention being given to the

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provision "necessary" and "essential security interests". The Court should, in my view, have itself first assessed whether there were essential security interests at risk. It would have noted that Iran itself conceded that the events in the Gulf generally, and the dangers to commerce presented by the so–called Tanker War, and the concomitant costs, did affect United States essential security interests (see paragraph 73 of the Court’s Judgment). The Court should next have examined – without any need to afford a "margin of appreciation" – the meaning of "necessary". In the context of the events of the time, it could certainly have noticed that, in general international law, "necessary" is understood also as incorporating a need for "proportionality". The factual evidence should then have been assessed in the light of these elements – treaty interpretation applying the rules of the Vienna Convention on the Law of Treaties.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005 [pp. 294 S.O. Parra-Aranguren] 7. … the majority of the Court understands that the Lusaka Ceasefire Agreement did not change the legal status of the presence of Uganda, i.e., in violation of international law, but at the same time it considers that Uganda was under an obligation to respect the timetable agreed upon, as revised in the Kampala Disengagement Plan of 8 April 2000, the Harare Disengagement Plan of 6 December 2000 and the Luanda Agreement of 6 September 2002.

8. This interpretation of the Lusaka Ceasefire Agreement, the Kampala Disengagement Plan, the Harare Disengagement Plan and the Luanda Agreement creates an impossible legal situation for Uganda. On the one hand, if Uganda complied with its treaty obligations and remained in the territory of the DRC until the expiration of the timetables agreed upon, Uganda would be in violation of international law because the legal status of its presence had not been changed, the status of its military forces in the DRC being a violation of international law. On the other hand, if Uganda chose not to violate international law as a consequence of its military presence in the DRC, and therefore withdrew its troops from the territory of the DRC otherwise than in accordance with the timetables agreed upon, Uganda would have violated its treaty obligations, thereby also being in violation of international law.

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9. This reasoning is, in my opinion, persuasive enough not to accept the very peculiar interpretation advanced in the Judgment of the Lusaka Ceasefire Agreement, the Kampala Disengagement Plan, the Harare Disengagement Plan and the Luanda Agreement. Moreover, an examination of the terms of these instruments leads to a different conclusion.

7.9. Specific Treaties

*

7.9.1. Treaty between the Allied and Associated Powers and the Kingdom of the Serbs, Croats and Slovenes on the Protection of Minorities of 1919

*

7.9.2. Convention on the Prevention and Punishment of the Crime of Genocide of 1948

*

7.9.3. Treaty of Friendship and Good Neighbourliness between the French Republic and the United Kingdom of Libya of 1955

*

7.9.4. Convention on the Continental Shelf of 1958

*

7.9.5. Doha Minutes

7.9.6. Treaty of Amity Economic Relations and Consular Rights between the United States of America and Iran of 1955

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[p. 196] 73. As noted above (paragraph 43), in the present case a question of whether certain action is "necessary" arises both as an element of international law relating to self– defence and on the basis of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted, whereby the Treaty does "not preclude ... measures ... necessary to protect [the] essential security interests" of either party. In this latter respect, the United States claims that it considered in good faith that the attacks on the platforms were necessary to protect its essential security interests, and suggests that "A measure of discretion should be afforded to a party’s good faith application of measures to protect its essential security interests". Iran was prepared to recognize some of the interests referred to by the United States – the safety of United States vessels and crew, and the

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uninterrupted flow of maritime commerce in the Persian Gulf – as being reasonable security interests of the United States, but denied that the United States actions against the platforms could be regarded as "necessary" to protect those interests. 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".

[pp. 198-199] 76. The Court is not sufficiently convinced that the evidence available supports the contentions of the United States as to the significance of the military presence and activity on the Reshadat oil platforms; and it notes that no such evidence is offered in respect of the Salman and Nasr complexes. However, even accepting those contentions, for the purposes of discussion, the Court is unable to hold that the attacks made on the platforms could have been justified as acts of self–defence. 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 (I), 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). In the case both of the attack on the Sea Isle City and the mining of the USS Samuel B. Roberts, the Court is not satisfied that the attacks on the platforms were necessary to respond to these incidents. In this connection, the Court notes that there is no evidence that the United States complained to Iran of the military activities of the platforms, in the same way as it complained repeatedly of minelaying and attacks on neutral shipping, which does not suggest that the targeting of the platforms was seen as a necessary act. The Court would also observe that in the case of the attack of 19 October 1987, the United States forces attacked the R–4 platform as a "target of opportunity", not one previously identified as an appropriate military target.

77. As to the requirement of proportionality, the attack of 19 October 1987 might, had the Court found that it was necessary in response to the Sea Isle City incident as an armed

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attack committed by Iran, have been considered proportionate. In the case of the attacks of 18 April 1988, however, they were conceived and executed as part of a more extensive operation entitled "Operation Praying Mantis". The question of the lawfulness of other aspects of that operation is not before the Court, since it is solely the action against the Salman and Nasr complexes that is presented as a breach of the 1955 Treaty; but the Court cannot assess in isolation the proportionality of that action to the attack to which it was said to be a response; it cannot close its eyes to the scale of the whole operation, which involved, inter alia, the destruction of two Iranian frigates and a number of other naval vessels and aircraft. As a response to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life, neither "Operation Praying Mantis" as a whole, nor even that part of it that destroyed the Salman and Nasr platforms, can be regarded, in the circumstances of this case, as a proportionate use of force in self–defence.

78. The Court thus concludes from the foregoing that the actions carried out by United States forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self–defence, and thus did not fall within the category of measures contemplated, upon its correct interpretation, by that provision of the Treaty.

[pp. 237-240 S.O. Higgins] 45. It is a common place that treaties are to be interpreted by reference to the rules enunciated in Article 31 of the Vienna Convention on the Law of Treaties, which Article is widely regarded as reflecting general international law. Article 31, paragraph 3 (c), on which the Court places emphasis, states that, in interpreting a treaty, "There shall be taken into account, together with the context, ... any relevant rules of international law applicable in the relations between the parties."

46. The Court reads this provision as incorporating the totality of the substantive international law (which in paragraph 42 of the Judgment is defined as comprising Charter law) on the use of force. But this is to ignore that Article 31, paragraph 3, requires "the context" to be taken into

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account: and "the context" is clearly that of an economic and commercial treaty. What is envisaged by Article 31, paragraph 3 (c), is that a provision that requires interpretation in Article XX, paragraph 1 (d), will be illuminated by recalling what type of a treaty this is and any other "relevant rules" governing Iran–United States relations. It is not a provision that on the face of it envisages incorporating the entire substance of international law on a topic not mentioned in the clause – at least not without more explanation than the Court provides.

47. Having recounted the differing views of the Parties on the role of the Charter and customary international law in relation to Article XX, paragraph 1 (d), the Court states that the matter is really "one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (d)" (para. 40). But the reality is that the Court does not attempt to interpret Article XX, paragraph 1 (d). It is not until paragraph 73 that there is any legal reference at all to the text of that provision. The intervening 20 pages have been spent on the international law of armed attack and self– defence and its application, as the Court sees it, to the events surrounding the United States attacks on the oil platforms.

48. An interpretation "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties) would surely have led to a scrutiny of the very terms of Article XX, paragraph 1 (d), especial attention being given to the provision "necessary" and "essential security interests". The Court should, in my view, have itself first assessed whether there were essential security interests at risk. It would have noted that Iran itself conceded that the events in the Gulf generally, and the dangers to commerce presented by the so–called Tanker War, and the concomitant costs, did affect United States essential security interests (see paragraph 73 of the Court’s Judgment). The Court should next have examined – without any need to afford a "margin of appreciation" – the meaning of "necessary". In the context of the events of the time, it could certainly have noticed that, in general international law, "necessary" is understood also as incorporating a need for "proportionality". The factual evidence should then have been assessed in the light of these elements – treaty interpretation applying the rules of the Vienna Convention on the Law of Treaties.

49. The Court has, however, not interpreted Article XX, paragraph 1 (d), by reference to the

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rules on treaty interpretation. It has rather invoked the concept of treaty interpretation to displace the applicable law. It has replaced the terms of Article XX, paragraph 1 (d), with those of international law on the use of force and all sight of the text of Article XX, paragraph 1 (d), is lost. Emphasizing that "originally" and "in front of the Security Council" (paras. 62, 67, 71 and 72 of the Judgment) the United States had stated that it had acted in self–defence, the Court essentially finds that "the real case" is about the law of armed attack and self–defence. This is said to be the law by reference to which Article XX, paragraph 1 (d), is to be interpreted, and the actual provisions of Article XX, paragraph 1 (d), are put to one side and not in fact interpreted at all.

50. The United States – perhaps especially remembering the injunction of the Court in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) of 1986 as to the legal requirement of reporting any self–defence measures to the Security Council – had taken care to do so in this instance. But it is not the legality of that claim of self– defence before the Security Council that the Court is asked to adjudicate. The Judgment is formulated as if in this case the United States has formulated its main defence as an invocation of the right of self–defence. It has not. It invoked that argument as a final submission in the alternative, arising only should the Court find that its other arguments do not avail. But the Court never looks at its major submission, which was a justification of the use of force by reference to the criteria specified in Article XX, paragraph 1 (d). In spite of repeatedly stating in 1996 that this clause would on the merits afford a possible defence that would then be examined (I.C.J. Reports 1996 (II), p. 811, para. 20), the Court never does so. It effectively tells the United States that as it had reported the acts to the Security Council as being acts of self–defence, it is now to be judged on that, and that alone.

51. Further, in reformulating the matter as one of self–defence under international law rather than "necessary" action for the "protection of essential security interests" within the terms of the 1955 Treaty, the Court narrows the range of factual issues to be examined. Through this recasting of the United States case the Court reduces to nil the legal interest in what was happening to oil commerce generally during the "Tanker War". Instead it makes the sole question that of whether an attack on two vessels (Sea Isle City and USS Samuel B. Roberts) constituted an armed attack on the United States that warranted military action in self–defence.

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52. Moreover, the Court has in this Judgment done what it had set its face against doing in 1996. The Court – entirely aware, even then, that the issue over which Iran would have liked a ruling was that of the legality of the use of United States military actions by reference to international law on the use of force – determined that it had jurisdiction over one issue alone: whether the use of force by the United States had violated its obligations relating to freedom of commerce under Article X, paragraph 1, of the 1955 Treaty. The Court would later also look at any defence the United States raised under Article XX, paragraph 1 (d). There is no indication whatsoever that the Court envisaged the reintroduction, through an "interpretation" of Article XX, paragraph 1 (d), of the much broader issue over which it had so clearly said in 1996 that it had no jurisdiction.

53. The Applicant in 1996 sought a jurisdictional basis to bring a case against the Respondent regarding the use of force under customary international law and Charter law. The Court held that the only dispute before it was one over freedom of commerce under Article X, paragraph 1, of the 1955 Treaty.

54. The present Judgment, through a series of steps that I have described (each, in my view, open to challenge), essentially reverses the 1996 decision, allowing a clause described by the Court in 1996 as a "defence" to be a peg for a determination by the Court as to the legality of the United States military actions under international law.

[pp. 252-254 S.O. Kooijmans] 20. … During the oral proceedings, counsel for the United States explicitly stated that "the jurisdiction of the Court is confined to the issue of whether the actions of the United States were necessary in order to protect its essential security interests; that jurisdiction [of the Court] does not extend to the issue of the legality of those actions in light of the rules governing the use of force and self–defence" (CR 2003/12, p. 26).

21. The Court has duly taken note of this position of the United States (para. 39 of the Judgment). It observes, however, that when a measure taken under Article XX, paragraph 1 (d), is invoked to justify actions involving the use of force, allegedly in self–defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self–defence under general international law and that, consequently, its

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jurisdiction extends to the determination whether action (under Article XX, paragraph 1 (d)) was or was not an unlawful use of force, by reference to the provisions of the United Nations Charter and customary international law. And the Court thoughtfully adds "that its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty" (paras. 40 and 42 of the Judgment).

22. I seriously doubt, however, whether the Court has faithfully stuck to this declared intention. Already in the next paragraph the Court observes that in the present case the question whether measures taken under Article XX, paragraph 1 (d), were necessary overlaps with the question of their validity as acts of self–defence. And then the Court immediately cites the 1986 Nicaragua Judgment, where it said that the criteria of necessity and proportionality must be met if a measure is to be qualified as self–defence. That statement, however, was made in the context of the Court’s dealing with the dispute concerning the lawfulness of the use of force under customary international law as submitted to the Court under Article 36, paragraph 2, of the Statute. That does not mean that that statement is irrelevant for the interpretation of Article XX, paragraph 1 (d), but it seems to pave the way for a nearly exclusive consideration of the United States actions in the light of the right of self–defence under general international law. It can therefore come as no surprise when the Court says in paragraph 50 that it will "first concentrate on the facts tending to show the validity or otherwise of the claim to exercise the right of self– defence" (emphasis added).

23. But that is putting the shoe on the wrong foot. For this is not the claim before the Court, which has to decide whether the actions against the platform can be qualified as measures necessary to protect the United States security interests in the sense of Article XX, paragraph 1 (d), of the 1955 Treaty, not whether they were justified as measures taken in self–defence under international law. It can be readily admitted that if these measures involve the use of force, the rules of general international law become relevant for the question whether these measures can qualify as being "necessary". But that is something completely different from putting these measures directly to the test of the general rules of law on the use of force. The relationship is in my opinion aptly reflected in the decision of the Iran–United States Claims Tribunal in the Amoco International Finance case when it said with regard to the 1955 Treaty that "the rules of customary law may be useful ... to ascertain the meaning of undefined terms in its text or, more generally, to aid interpretation and implementation of its provisions" (15 Iran–U.S. CTR 189,

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p. 222, para. 112).

24. The Court, however, considers the United States actions nearly exclusively in the light of the right of self–defence and returns only at a rather late stage to the terms of Article XX, paragraph 1 (d) (para. 73 of the Judgment). In doing so, it takes as its point of departure the letters sent to the Security Council by the United States Permanent Representative after each of the two incidents, letters that were inevitably worded in Charter–language and most certainly would not have referred to Article XX, paragraph 1 (d), of the 1955 Treaty even if the United States had linked the actions against the platforms with that Treaty. It is these letters, from which the United States understandably did not distance itself in the present proceedings, which are constantly referred to as yardsticks for the evaluation of the conduct of the United States.

[pp. 262 S.O. Kooijmans] 52. As far as the legal aspects of Article XX, paragraph 1 (d), of the 1955 Treaty are concerned, the correct approach in my view is the following: (a) The Court has no jurisdiction to determine whether the destruction of the oil platforms can or cannot be justified as acts of legitimate self–defence. (b) When determining whether a measure is "necessary to protect a party’s essential security interests" the Court must first apply the test of reasonableness with regard to the question whether there existed a plausible threat to these interests justifying certain protective measures. As already said, I am satisfied that in the present case the United States could with good reason argue that its essential security interests were at risk. The fact that other States in a comparable situation made diplomatic protests and took protective measures by means of a military presence in the Gulf, is evidence of a general perception that important and essential interests were at stake. (c) The fact that the United States decided to take measures involving the use of force, makes it necessary for the Court to assess their legality in the light of the rules of general international law on the use of force. The use of force is not excluded by Article XX, paragraph 1 (d). The legality test to be applied by the Court must therefore be based on the presumption that the use of force is prohibited unless it can be justified under general international law of which the principle of legitimate self–defence is an important element.

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[pp. 377-378 S.O. Rigaux] 17. The question to be answered for purposes of applying and interpreting Article XX, paragraph 1 (d), of the 1955 Treaty is whether the use of force falls within the “measures” that a State may take to protect its essential security interests. Or, in other words, do the measures from which a State may choose in order to protect its essential security interests include the use of force against another State? For that was certainly what the attack on the oil platforms was, since these, being located on Iran’s continental shelf, fall within the exclusive jurisdiction of that State. There are two ways of answering the question as posed in these specific terms. Either we accept that paragraph 1 (d) of Article XX falls to be considered in some form of isolation which cuts it off from the other rules of international law, in particular the United Nations Charter and the norms of customary international law prohibiting the use of force, or we accept that the prohibition of the use of force in accordance with the terms of Article 2, paragraph 4, of the Charter and with customary international law forms part of jus cogens, which would prohibit States from derogating therefrom in their bilateral treaty relations. For that would indeed be the consequence to which the first reply to the question would lead: paragraph 1 (d) of Article XX would permit either of the contracting States to use armed force against the other State in circumstances which would not have to satisfy the requirements of Article 51 of the Charter but which it would be entitled to take under the – undefined – guise of “measures to protect its essential security interests”.

18. In its 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did indeed reject the United States defence based on paragraph 1 (d) of Article XXI of the Treaty of Friendship with Nicaragua (having first rejected the self-defence argument). However, in holding that “the mining of Nicaraguan ports, and the direct attacks on ports and oil installations, cannot possibly be justified as ‘necessary’ to protect the essential security interests of the United States”61, the Court does not expressly explain the reason for its decision: is it because the actions attributed to the United States go beyond the nature and scope of measures which may be taken under Article XXI of the Treaty of Friendship, or, more simply, because such actions were not necessary to protect essential security interests, but would not have been unlawful if they had satisfied that requirement? Point 2 of the operative paragraph of the 1986 Judgment expressly rejects “the justification of collective self-defence maintained by the United States 61 I.C.J. Reports 1986, p. 141, para. 282.

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of America”, whilst no other part of that operative paragraph refers to Article XXI of the Treaty of Freindship. In order to decide that the measures which a State is authorized to take under paragraph 1 (d) of Article XX of the 1955 Treaty and numerous similar provisions in other bilateral treaties of friendship and commerce do not include the use of force, the Court need not have recourse to the United Nations Charter or the customary rules of international law on the use of force. It is open to the Court, while confning itself to interpreting and applying the bilateral treaty – its sole basis of jurisdiction – to conclude, simply by interpreting paragraph 1 (d), that the High Contracting Parties did not intend to confer upon one another a mutual freedom to have recourse to armed force in the context of a measure necessary to protect essential security interests.

*

7.9.7. Convention on Privileges and Immunities of the United Nations of 1946

7.9.8. Vienna Convention on Consular Relations

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 480-481] 36. In relation to the jurisdiction of the Court, the United States, without having raised preliminary objections under Article 79 of the Rules of Court, nevertheless presented certain objections thereto. Germany bases the jurisdiction of the Court on Article I of the Optional Protocol, which reads as follows: "Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol." Germany contends that the "proceedings instituted by [it] in the present case raise questions of the interpretation and application of the Vienna Convention on Consular Relations

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and of the legal consequences arising from the non–observance on the part of the United States of certain of its provisions vis–à–vis Germany and two of its nationals". Accordingly, Germany states that all four of its submissions "are covered by one and the same jurisdictional basis, namely Art. I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963".

37. The Court will first examine the question of its jurisdiction with respect to the first submission of Germany. Germany relies on paragraph 1 of Article 36 of the Vienna Convention, which provides: "With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall

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refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action."

[pp. 482-483] 40. Concerning Germany's claims of violation of Article 36, paragraph 1 (a) and (c), the United States however calls these claims "particularly misplaced" on the grounds that the "underlying conduct complained of is the same" as the claim of the violation of Article 36, paragraph 1 (b). It contends, moreover, that "to the extent that this claim by Germany is based on the general law of diplomatic protection, it is not within the Court's jurisdiction" under the Optional Protocol because it "does not concern the interpretation or application of the Vienna Convention". The United States points to the distinction between jurisdiction over treaties and jurisdiction over customary law and observes that "[e]ven if a treaty norm and a customary norm were to have exactly the same content," each would have its "separate applicability". It contests the German assertion that diplomatic protection "enters through the intermediary of the Vienna Convention" and submits: "the Vienna Convention deals with consular assistance ... it does not deal with diplomatic protection. Legally, a world of difference exists between the right of the consul to assist an incarcerated national of his country, and the wholly different question whether the State can espouse the claims of its national through diplomatic protection. The former is within the jurisdiction of the Court under the Optional Protocol; the latter is not ... Germany based its right of diplomatic protection on customary law ... [T]his case comes before this Court not under Article 36, paragraph 2 of its Statute, but under Article 36, paragraph 1. Is it not obvious ... that whatever rights Germany has under customary law, they do not fall within the jurisdiction of this Court under the Optional Protocol?"

41. Germany responds that the breach of paragraph 1 (a) and (c) of Article 36 must be distinguished from that of paragraph 1 (b), and that as a result, the Court should not only rule on the latter breach, but also on the violation of paragraph 1 (a) and (c). Germany further asserts "that 'application of the Convention' in the sense of the

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Optional Protocol very well encompasses the consequences of a violation of individual rights under the Convention, including the espousal of respective claims by the State of nationality".

42. 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.

[p. 492] 74. Article 36, paragraph 1, establishes an interrelated régime 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,

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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.

[pp. 492-495] 75. Germany further contends that "the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers". Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground. Germany maintains that the right to be informed of the rights under Article 36, paragraph 1 (b), of the Vienna Convention, is an individual right of every national of a State party to the Convention who enters the territory of another State party. It submits that this view is supported by the ordinary meaning of the terms of Article 36, paragraph 1 (b), of the Vienna Convention, since the last sentence of that provision speaks of the "rights" under this subparagraph of "the person concerned", i.e., of the foreign national arrested or detained. Germany adds that the provision in Article 36, paragraph 1 (b), according to which it is for the arrested person to decide whether consular notification is to be provided, has the effect of conferring an individual right upon the foreign national concerned. In its view, the context of Article 36 supports this conclusion since it relates to both the concerns of the sending and receiving States and to those of individuals. According to Germany, the travaux préparatoires of the Vienna Convention lend further support to this interpretation. In addition, Germany submits that the "United Nations Declaration on the human rights of individuals who are not nationals of the country in which they live," adopted by General Assembly resolution 40/144 on 13 December 1985, confirms the view that the right of access to the consulate of the home State, as well as the information on this right, constitute individual rights of foreign nationals and are to be regarded as human rights of aliens.

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76. The United States questions what this additional claim of diplomatic protection contributes to the case and argues that there are no parallels between the present case and cases of diplomatic protection involving the espousal by a State of economic claims of its nationals. The United States maintains that the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the claims of its nationals through diplomatic protection, are legally different concepts. The United States contends, furthermore, that rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance. It maintains that the treatment due to individuals under the Convention is inextricably linked to and derived from the right of the State, acting through its consular officer, to communicate with its nationals, and does not constitute a fundamental right or a human right. The United States argues that the fact that Article 36 by its terms recognizes the rights of individuals does not determine the nature of those rights or the remedies required under the Vienna Convention for breaches of that Article. It points out that Article 36 begins with the words "[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State," and that this wording gives no support to the notion that the rights and obligations enumerated in paragraph 1 of that Article are intended to ensure that nationals of the sending State have any particular rights or treatment in the context of a criminal prosecution. The travaux préparatoires of the Vienna Convention according to the United States, do not reflect a consensus that Article 36 was addressing immutable individual rights, as opposed to individual rights derivative of the rights of States.

77. 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

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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 1, 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.

78. At the hearings, Germany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right, but has today assumed the character of a human right. In consequence, Germany added, "the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative". The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.

79. The Court will now consider Germany's second submission, in which it asks the Court to adjudge and declare: "that the United States, by applying rules of its domestic law, in particular the doctrine of procedural default, which barred Karl and Walter LaGrand from

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raising their claims under the Vienna Convention on Consular Relations, and by ultimately executing them, violated its international legal obligation to Germany under Article 36, paragraph 2, of the Vienna Convention to give full effect to the purposes for which the rights accorded under Article 36 of the said Convention are intended".

[pp. 497-498] 88. Article 36, paragraph 2, of the Vienna Convention reads as follows: "The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended."

89. 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 1, 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).

90. 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 1, of the Convention, that the competent national authorities failed to comply with their obligation to provide the requisite consular information

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"without delay", thus preventing the person from seeking and obtaining consular assistance from the sending State.

91. In this case, Germany had the right at the request of the LaGrands "to arrange for [their] legal representation" and was eventually able to provide some assistance to that effect. By that time, however, because of the failure of the American authorities to comply with their obligation under Article 36, paragraph 1 (b), the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitutional grounds. 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 1, prevented Germany, in a timely fashion, 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.

[pp. 520-521 S.O. Shi] 4. In the present case, both the Applicant and the Respondent had no divergence of views as to the normal meaning of the words of Article 36, paragraph 1 (b). However, the Parties reached differing conclusions on the interpretation of the subparagraph. In these circumstances I wonder whether it is proper for the Court, in approaching the issue, to place so much emphasis on the purported clarity of language of the provision, putting aside altogether the customary rules of interpretation. In my view it is not unreasonable for the United States to contend that the rights of nationals of the sending State under detention or arrest to consular notification and access under paragraph 1 (b) are not independent of, but rather are derived from, the right of the State party to protect and assist its nationals under the Convention, if the subparagraph is read, as the United States reads it, in context and in the light of the object and purpose of the Convention.

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5. In the first place, the very title of the Convention is none other than the "Vienna Convention on Consular Relations". And the object and purpose of the conclusion of an international convention on consular relations as indicated in the preamble is to "contribute to the development of friendly relations among nations". Nowhere in the Preamble of the Convention is reference made to the creation of rights of individuals under the Convention.

6. Secondly, Article 36, which bears the title "Communications and contact with nationals of the sending State", begins with the words: "With a view to facilitating the exercise of consular functions relating to nationals of the sending State". This clause serves as the chapeau governing all the paragraphs of the Article, including paragraph 1 (b), where "rights" of the concerned nationals of the sending State are provided. Clearly, the effect of this clause is to limit the scope of Article 36 to facilitation of the exercise of consular functions relating to nationals of the sending State. It is unfortunate that paragraph 77 of the Judgment made no mention of the chapeau of the Article, as if it were irrelevant to the context of paragraph 1 (b).

7. Thirdly, according to Article 5 of the Convention, consular functions consist inter alia in "protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law" (Art. 5 (a)) and "helping and assisting nationals, both individuals and bodies corporate, of the sending State" (Art. 5 (e)). Article 36, paragraph 1, and specifically subparagraph (b), has to be read in the context of these consular functions provided for in Article 5. It is obvious that there cannot be rights to consular notification and access if consular relations do not exist between the States concerned, or if rights of the sending State to protect and assist its nationals do not exist.

8. Finally, it is clear, as the United States has contended, that the travaux préparatoires of the 1963 Vienna Conference on Consular Relations do not confirm that Article 36, paragraph 1 (b), is intended to create individual rights

[p. 523-524 S.O. Shi] 15. The result of the debate was the adoption of the twenty States' amendment with the insertion of the words "if he so requests" at the beginning of the subparagraph. The last sentence of Article 36, paragraph 1 (b), i.e., the provision that the competent authorities of the receiving State "shall inform the person concerned without delay

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of his rights" (United Nations Conference on Consular Relations, 1963, Vol. 1, pp. 336–343) was inserted belatedly as a compromise between the aforesaid two opposing views. Thus, it is not possible to conclude from the negotiating history that Article 36, paragraph 1 (b), was intended by the negotiators to create individual rights. Moreover, if one keeps in mind that the general tone and thrust of the debate of the entire Conference concentrated on the consular functions and their practicability, the better view would be that no creation of any individual rights independent of rights of States was envisaged by the Conference.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004 [pp. 43-44] 61. The Court thus now turns to the interpretation of Article 36, paragraph 1

(b), having found in paragraph 57 above that it is applicable to the 52 persons listed in paragraph 16. It begins by noting that Article 36, paragraph 1 (b), contains three separate but interrelated elements: the right of the individual concerned to be informed without delay of his rights under Article 36, paragraph 1 (b); the right of the consular post to be notified without delay of the individual’s detention, if he so requests; and the obligation of the receiving State to forward without delay any communication addressed to the consular post by the detained person.

62. The third element of Article 36, paragraph 1 (b), has not been raised on the facts before the Court. The Court thus begins with the right of an arrested or detained individual to information.

63. The Court finds that the duty upon the detaining authorities to give the Article 36, paragraph 1 (b), information to the individual arises once it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national. Precisely when this may occur will vary with circumstances. The United States Department of State booklet, 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

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to Assist Them, issued to federal, state and local authorities in order to promote compliance with Article 36 of the Vienna Convention points out in such cases that: "most, but not all, persons born outside the United States are not [citizens]. Unfamiliarity with English may also indicate foreign nationality." The Court notes that when an arrested person himself claims to be of United States nationality, the realization by the authorities that he is not in fact a United States national, or grounds for that realization, is likely to come somewhat later in time.

64. The United States has told the Court that millions of aliens reside, either legally or illegally, on its territory, and moreover that its laws concerning citizenship are generous. The United States has also pointed out that it is a multicultural society, with citizenship being held by persons of diverse appearance, speaking many languages. The Court appreciates that in the United States the language that a person speaks, or his appearance, does not necessarily indicate that he is a foreign national. Nevertheless, and particularly in view of the large numbers of foreign nationals living in the United States, these very circumstances suggest that it would be desirable for enquiry routinely to be made of the individual as to his nationality upon his detention, so that the obligations of the Vienna Convention may be complied with. The United States has informed the Court that some of its law enforcement authorities do routinely ask persons taken into detention whether they are United States citizens. Indeed, were each individual to be told at that time that, should he be a foreign national, he is entitled to ask for his consular post to be contacted, compliance with this requirement under Article 36, paragraph 1 (b), would be greatly enhanced. The provision of such information could parallel the reading of those rights of which any person taken into custody in connection with a criminal offence must be informed prior to interrogation by virtue of what in the United States is known as the "Miranda rule"; these rights include, inter alia, the right to remain silent, the right to have an attorney present during questioning, and the right to have an attorney appointed at government expense if the person cannot afford one. The Court notes that, according to the United States, such a practice in respect of the Vienna Convention rights is already being followed in some local jurisdictions.

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[pp. 46] 75. The question nonetheless remains as to whether, in each of the 45 cases

referred to in paragraph 65 and of the six cases mentioned in paragraphs 67 to 73, the United States did provide the required information to the arrested persons "without delay". It is to that question that the Court now turns.

76. The Court has been provided with declarations from a number of the Mexican nationals concerned that attest to their never being informed of their rights under Article 36, paragraph 1 (b). The Court at the outset notes that, in 47 such cases, the United States nowhere challenges this fact of information not being given. Nevertheless, in the case of Mr. Hernández (case No. 34), the United States observes that "Although the [arresting] officer did not ask Hernández Llanas whether he wanted them to inform the Mexican Consulate of his arrest, it was certainly not unreasonable for him to assume that an escaped convict would not want the Consulate of the country from which he escaped notified of his arrest." The Court notes that the clear duty to provide consular information under Article 36, paragraph 1 (b), does not invite assumptions as to what the arrested person might prefer, as a ground for not informing him. It rather gives the arrested person, once informed, the right to say he nonetheless does not wish his consular post to be notified. It necessarily follows that in each of these 47 cases, the duty to inform "without delay" has been violated.

[pp. 48-50] 83. The Court now addresses the question of the proper interpretation of the

expression "without delay" in the light of arguments put to it by the Parties. The Court begins by noting that the precise meaning of "without delay", as it is to be understood in Article 36, paragraph 1 (b), is not defined in the Convention. This phrase therefore requires interpretation according to the customary rules of treaty interpretation reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

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84. Article 1 of the Vienna Convention on Consular Relations, which defines certain of the terms used in the Convention, offers no definition of the phrase "without delay". Moreover, in the different language versions of the Convention various terms are employed to render the phrases "without delay" in Article 36 and "immediately" in Article 14. The Court observes that dictionary definitions, in the various languages of the Vienna Convention, offer diverse meanings of the term "without delay" (and also of "immediately"). It is therefore necessary to look elsewhere for an understanding of this term.

85. As for the object and purpose of the Convention, the Court observes that Article 36 provides for consular officers to be free to communicate with nationals of the sending State, to have access to them, to visit and speak with them and to arrange for their legal representation. It is not envisaged, either in Article 36, paragraph 1, or elsewhere in the Convention, that consular functions entail a consular officer himself or herself acting as the legal representative or more directly engaging in the criminal justice process. Indeed, this is confirmed by the wording of Article 36, paragraph 2, of the Convention. Thus, neither the terms of the Convention as normally understood, nor its object and purpose, suggest that "without delay" is to be understood as "immediately upon arrest and before interrogation".

86. The Court further notes that, notwithstanding the uncertainties in the travaux préparatoires, they too do not support such an interpretation. During the diplomatic conference, the conference’s expert, former Special Rapporteur of the International Law Commission, explained to the delegates that the words "without undue delay" had been introduced by the Commission, after long discussion in both the plenary and drafting committee, to allow for special circumstances which might permit information as to consular notification not to be given at once. Germany, the only one of two States to present an amendment, proposed adding "but at latest within one month". There was an extended discussion by many different delegates as to what such outer time–limit would be acceptable. During that debate no delegate proposed "immediately". The shortest specific period suggested was by the United Kingdom, namely "promptly" and

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no later than "48 hours" afterwards. Eventually, in the absence of agreement on a precise time period, the United Kingdom’s other proposal to delete the word "undue" was accepted as the position around which delegates could converge. It is also of interest that there is no suggestion in the travaux that the phrase "without delay" might have different meanings in each of the three sets of circumstances in which it is used in Article 36, paragraph 1 (b).

87. The Court thus finds that "without delay" is not necessarily to be interpreted as "immediately" upon arrest. It further observes that during the Conference debates on this term, no delegate made any connection with the issue of interrogation. The Court considers that the provision in Article 36, paragraph 1 (b), that the receiving State authorities "shall inform the person concerned without delay of his rights" cannot be interpreted to signify that the provision of such information must necessarily precede any interrogation, so that the commencement of interrogation before the information is given would be a breach of Article 36.

88. Although, by application of the usual rules of interpretation, "without delay" as regards the duty to inform an individual under Article 36, paragraph 1 (b), is not to be understood as necessarily meaning "immediately upon arrest", there is nonetheless a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.

89. With one exception, no information as to entitlement to consular notification was given in any of the cases cited in paragraph 77 within any of the various time periods suggested by the delegates to the Conference on the Vienna Convention, or by the United States itself (see paragraphs 81 and 86 above). Indeed, the information was given either not at all or at periods very significantly removed from the time of arrest. In the case of Mr. Juárez (case No. 10), the defendant was informed of his consular rights 40 hours after his arrest. The Court notes, however, that Mr. Juárez’s arrest report stated that he had been born in Mexico; moreover, there had been indications of

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his Mexican nationality from the time of his initial interrogation by agents of the Federal Bureau of Investigation (FBI) following his arrest. It follows that Mr. Juárez’s Mexican nationality was apparent from the outset of his detention by the United States authorities. In these circumstances, in accordance with its interpretation of the expression "without delay" (see paragraph 88 above), the Court concludes that the United States violated the obligation incumbent upon it under Article 36, paragraph 1 (b), to inform Mr. Juárez without delay of his consular rights. The Court notes that the same finding was reached by a California Superior Court, albeit on different grounds.

90. The Court accordingly concludes that, with respect to each of the individuals listed in paragraph 16, with the exception of Mr. Salcido (case No. 22; see paragraph 74 above), the United States has violated its obligation under Article 36, paragraph 1 (b), of the Vienna Convention to provide information to the arrested person.

[p. 50] 91. As noted above, Article 36, paragraph 1 (b), contains three elements. Thus

far, the Court has been dealing with the right of an arrested person to be informed that he may ask for his consular post to be notified. The Court now turns to another aspect of Article 36, paragraph 1 (b). The Court finds the United States is correct in observing that the fact that a Mexican consular post was not notified under Article 36, paragraph 1 (b), does not of necessity show that the arrested person was not informed of his rights under that provision. He may have been informed and declined to have his consular post notified. The giving of the information is relevant, however, for satisfying the element in Article 36, paragraph 1 (b), on which the other two elements therein depend.

[p. 52] 98. In the first of its final submissions, Mexico also asks the Court to find that the violations it ascribes to the United States in respect of Article 36, paragraph 1 (b), have also deprived "Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention".

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99. The relationship between the three subparagraphs of Article 36, paragraph 1, has been described by the Court in its Judgment in the LaGrand case (I.C.J. Judgments 2001, p. 492, para. 74) as "an interrelated régime". The legal conclusions to be drawn from that interrelationship necessarily depend upon the facts of each case. In the LaGrand case, the Court found that the failure for 16 years to inform the brothers of their right to have their consul notified effectively prevented the exercise of other rights that Germany might have chosen to exercise under subparagraphs (a) and (c).

100. It is necessary to revisit the interrelationship of the three subparagraphs of Article 36, paragraph 1, in the light of the particular facts and circumstances of the present case.

101. The Court would first recall that, in the case of Mr. Juárez (case No. 10) (see paragraph 93 above), when the defendant was informed of his rights, he declined to have his consular post notified. Thus in this case there was no violation of either subparagraph (a) or subparagraph (c) of Article 36, paragraph 1.

102. In the remaining cases, because of the failure of the United States to act in conformity with Article 36, paragraph 1 (b), Mexico was in effect precluded (in some cases totally, and in some cases for prolonged periods of time) from exercising its right under paragraph 1 (a) to communicate with its nationals and have access to them. As the Court has already had occasion to explain, it is immaterial whether Mexico would have offered consular assistance, "or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights" (I.C.J. Reports 2001, p. 492, para. 74), which might have been acted upon.

103. The same is true, pari passu, of certain rights identified in subparagraph (c): "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, and to converse and correspond with him ..."

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[pp. 54-54] 104. On the other hand, and on the particular facts of this case, no such

generalized answer can be given as regards a further entitlement mentioned in subparagraph (c), namely, the right of consular officers "to arrange for [the] legal representation" of the foreign national. Mexico has laid much emphasis in this litigation upon the importance of consular officers being able to arrange for such representation before and during trial, and especially at sentencing, in cases in which a severe penalty may be imposed. Mexico has further indicated the importance of any financial or other assistance that consular officers may provide to defence counsel, inter alia for investigation of the defendant’s family background and mental condition, when such information is relevant to the case. The Court observes that the exercise of the rights of the sending State under Article 36, paragraph 1 (c), depends upon notification by the authorities of the receiving State. It may be, however, that information drawn to the attention of the sending State by other means may still enable its consular officers to assist in arranging legal representation for its national. …

106. On this aspect of the case, the Court thus concludes: (1) that the United States committed breaches of the obligation incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention to inform detained Mexican nationals of their rights under that paragraph, in the case of the following 51 individuals: … (2) that the United States committed breaches of the obligation incumbent upon it under Article 36, paragraph 1 (b) to notify the Mexican consular post of the detention of the Mexican nationals listed in subparagraph (1) above, except in the cases of Mr. Juárez (No. 10) and Mr. Hernández (No. 34); (3) that by virtue of its breaches of Article 36, paragraph 1 (b), as described in subparagraph (2) above, the United States also violated the obligation incumbent upon it under Article 36, paragraph 1 (a), of the Vienna Convention to enable Mexican consular officers to communicate with and have access to their nationals, as well as its obligation under paragraph 1 (c) of that Article regarding the right of consular officers to visit their detained nationals;

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(4) that the United States, by virtue of these breaches of Article 36, paragraph 1 (b), also violated the obligation incumbent upon it under paragraph 1 (c) of that Article to enable Mexican consular officers to arrange for legal representation of their nationals; ...

[pp. 56-57] 111. The "procedural default" rule in United States law has already been brought to the attention of the Court in the LaGrand case. The following brief definition of the rule was provided by Mexico in its Memorial in this case and has not been challenged by the United States: "a defendant who could have raised, but fails to raise, a legal issue at trial will generally not be permitted to raise it in future proceedings, on appeal or in a petition for a writ of habeas corpus". The rule requires exhaustion of remedies, inter alia, at the state level and before a habeas corpus motion can be filed with federal courts. In the LaGrand case, the rule in question was applied by United States federal courts; in the present case, Mexico also complains of the application of the rule in certain state courts of criminal appeal.

112. The Court has already considered the application of the "procedural default" rule, alleged by Mexico to be a hindrance to the full implementation of the international obligations of the United States under Article 36, in the LaGrand case, when the Court addressed the issue of its implications for the application of Article 36, paragraph 2, of the Vienna Convention. The Court emphasized that "a distinction must be drawn between that rule as such and its specific application in the present case". The Court stated: "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 1, 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." (I.C.J. Reports 2001, p. 497, para. 90.)

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On this basis, the Court concluded that "the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitutional grounds" (ibid., para. 91). This statement of the Court seems equally valid in relation to the present case, where a number of Mexican nationals have been placed exactly in such a situation.

113. The Court will return to this aspect below, in the context of Mexico’s claims as to remedies. For the moment, the Court simply notes that the procedural default rule has not been revised, nor has any provision been made to prevent its application in cases where it has been the failure of the United States itself to inform that may have precluded counsel from being in a position to have raised the question of a violation of the Vienna Convention in the initial trial. It thus remains the case that the procedural default rule may continue to prevent courts from attaching legal significance to the fact, inter alia, that the violation of the rights set forth in Article 36, paragraph 1, prevented Mexico, in a timely fashion, from retaining private counsel for certain nationals and otherwise assisting in their defence. In such cases, application of the procedural default rule would have the effect of preventing "full effect [from being] given to the purposes for which the rights accorded under this article are intended", and thus violate paragraph 2 of Article 36. The Court notes moreover that in several of the cases cited in Mexico’s final submissions the procedural default rule has already been applied, and that in others it could be applied at subsequent stages in the proceedings. However, in none of the cases, save for the three mentioned in paragraph 114 below, have the criminal proceedings against the Mexican nationals concerned already reached a stage at which there is no further possibility of judicial re–examination of those cases; that is to say, all possibility is not yet excluded of "review and reconsideration" of conviction and sentence, as called for in the LaGrand case, and as explained further in paragraphs 128 and following below. It would therefore be premature for the Court to conclude at this stage that, in those cases, there is already a violation of the obligations under Article 36, paragraph 2, of the Vienna Convention.

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114. By contrast, the Court notes that in the case of three Mexican nationals, Mr. Fierro (case No. 31), Mr. Moreno (case No. 39), and Mr. Torres (case No. 53), conviction and sentence have become final. Moreover, in the case of Mr. Torres the Oklahoma Court of Criminal Appeals has set an execution date (see paragraph 21 above, in fine). The Court must therefore conclude that, in relation to these three individuals, the United States is in breach of the obligations incumbent upon it under Article 36, paragraph 2, of the Vienna Convention.

[pp. 97-98 S.O. Tomka] 14. I have misgivings as to the interpretation by the Court of Article 36, paragraph 1 (b). According to that interpretation, which is set out in paragraph 63 of the Judgment, the obligation under this subparagraph to provide information to the individual arises only once it is realized by the arresting authorities that the person is a foreign national, or once there are grounds to think that person is probably a foreign national. I consider that this interpretation is not well founded. Were such an approach to the interpretation of the norms of international law to be applied more widely, there is a danger that it might weaken the protection accorded to certain subjects (for example, children) under the prodecures for safeguarding human rights under international humanitarian law.

15. The obligation laid on the receiving State by Article 36 of the Vienna Convention does not depend on the authorities of the said State knowing that the person arrested is a foreigner. The obligation to provide information arises as soon as a foreigner is detained. Such an arrest constitutes an objective fact sufficient in itself to activate the receiving State’s obligation.

16. Knowledge of the facts plays no role, either in respect of the existence or applicability of the obligation to provide information under Article 36, paragraph 1 (b), or in respect of the violation of that obligation. Ignorance is not a circumstance precluding wrongfulness. Ignorantia non excusat. The State authorities must show due diligence in the exercise of their powers, and there is nothing to prevent them from making enquiry, as soon as the arrest is made, in regard to the nationality of the person detained. If that person claims to be a national of the country in which he has been arrested, he can no longer rely on the fact that he was not informed of his rights under Article 36, paragraph 1, of the Vienna Convention. Informing a person in custody that the Vienna Convnetion accords him certain rights if he is a national of another State is undoubtedly the best way of avoiding any breach of the obligation incumbent

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upon the authorites of the receiving State under Article 36 of the Convention. But those authorities cannot justify their omissions by relying on their own mistakes or errors of judgment.

[p. 117 S.O. Sepúlveda] 49. The purpose of Article 36 is to facilitate the exercise of consular functions related to nationals of the sending State. It imposes a number of obligations on the receiving State and provides certain rights of consular protection on behalf of a national of the sending State that has been "arrested or committed to prison or to custody pending trial or is detained in any other manner". Whenever such an event may happen, the receiving State "shall, without delay, inform the consular post of the receiving State". Additionally, "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention ... to arrange for his legal representation". Surely the essential objective of this principle is to guarantee that the protected national who is in prison, custody or detention has the benefit of expert legal advice before any action is taken potentially detrimental to his rights. As a consequence of this principle, the notification should be given immediately and prior to interrogation, especially in the case of serious crimes, if the exercise of right is to be useful.

[pp. 118-119 S.O. Sepúlveda] 53. The Miranda warning, an integral part of the United States system of constitutional rights, includes a number of principles related to legal representation, regarded as fundamental due process rights. One of the purposes of Article 36 is to identify and validate certain individual rights. This principle has been clearly established in the LaGrand Judgment. To exercise an individual right there is a need to provide a mechanism for its implementation, since rights do not operate in a void. The importance of this mechanism is particularly relevant whenever there is a breach of the corresponding obligations, imposing a duty to redress the wrong done.

54. The Miranda warning provides the foundation for due process of law of the detained person from the very moment of his arrest. As may be understood by the findings in the LaGrand Judgment and in the present Judgment, under certain circumstances Article 36 establishes a number of basic elements to ensure a fair trial from the time a foreign national is subject to custody by competent authorities up to the end of his judicial process. There is an intimate link between the Miranda warning and Article 36 in the sense that both aim at

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creating a scheme of protection of rights that directly impinge on the fairness of a trial. This scheme of protection may and should become effective and operative from the very first stages, preserving the rights of the detained person from an interrogation that may do him an unjustified harm at a later period of his judicial process. Under these assumptions, the individual rights of a detained person will be better protected if the corresponding consular officer arranges for his legal representation, involving a defence counsel of quality and with experience in the legal procedures that affect foreign nationals in capital cases. The scheme of protection will also be essential on other issues that are also an integral part of due process of law: plea–bargaining, the gathering of evidence, submission of investigative evidence.

55. Consular protection may be an important element for due process of law, especially in capital cases. Depending on the circumstances of each case, individual rights emanating from Article 36 can be equated with constitutional rights when the question to decide is closely related to the fair administration of justice. If this premise is recognized and accepted, then the Fifth Amendment to the United States Constitution can be invoked. This amendment specifically provides for procedural guarantees in cases of "a capital or otherwise infamous crime", adding that no person shall "be deprived of life, liberty or property, without due process of law".

7.9.9. 1891 Boundary Convention between Netherlands and Great Britain

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002

[pp. 645-648] 36. ... Indonesia relies essentially on Article IV of the 1891 Convention in support of its claim to the islands of Ligitan and Sipadan. That provision reads as follows: "From 4° 10' north latitude on the east coast the boundary–line shall be continued eastward along that parallel, across the Island of Sebittik: that portion of the island situated to the north of that parallel shall belong unreservedly to the British North Borneo Company, and the portion south of that parallel to the Netherlands."

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The Parties disagree over the interpretation to be given to that provision. ...

41. The Court notes that the Parties differ as to how the preposition "across" (in the English) or "over" (in the Dutch) in the first sentence of Article IV of the 1891 Convention should be interpreted. It acknowledges that the word is not devoid of ambiguity and is capable of bearing either of the meanings given to it by the Parties. A line established by treaty may indeed pass "across" an island and terminate on the shores of such island or continue beyond it. The Parties also disagree on the interpretation of the part of the same sentence which reads "the boundary–line shall be continued eastward along that parallel [4° 10' north]". In the Court’s view, the phrase "shall be continued" is also not devoid of ambiguity. Article I of the Convention defines the starting point of the boundary between the two States, whilst Articles II and III describe how that boundary continues from one part to the next. Therefore, when Article IV provides that "the boundary–line shall be continued" again from the east coast of Borneo along the 4° 10' N parallel and across the island of Sebatik, this does not, contrary to Indonesia’s contention, necessarily mean that the line continues as an allocation line beyond Sebatik. The Court moreover considers that the difference in punctuation in the two versions of Article IV of the 1891 Convention does not as such help elucidate the meaning of the text with respect to a possible extension of the line out to sea, to the east of Sebatik Island (see also paragraph 56 below).

42. The Court observes that any ambiguity could have been avoided had the Convention expressly stipulated that the 4° 10' N parallel constituted, beyond the east coast of Sebatik, the line separating the islands under British sovereignty from those under Dutch sovereignty. In these circumstances, the silence in the text cannot be ignored. It supports the position of Malaysia.

43. It should moreover be observed that a "boundary", in the ordinary meaning of the term, does not have the function that Indonesia attributes to the allocation line that was

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supposedly established by Article IV out to sea beyond the island of Sebatik, that is to say allocating to the parties sovereignty over the islands in the area. The Court considers that, in the absence of an express provision to this effect in the text of a treaty, it is difficult to envisage that the States parties could seek to attribute an additional function to a boundary line.

[pp. 649-651] 46. The Court considers that the Explanatory Memorandum appended to the draft Law submitted to the Netherlands States–General with a view to ratification of the 1891 Convention, the only document relating to the Convention to have been published during the period when the latter was concluded, provides useful information on a certain number of points. First, the Memorandum refers to the fact that, in the course of the prior negotiations, the British delegation had proposed that the boundary line should run eastwards from the east coast of North Borneo, passing between the islands of Sebatik and East Nanukan. It further indicates that the Sultan of Bulungan, to whom, according to the Netherlands, the mainland areas of Borneo then in issue between Great Britain and the Netherlands belonged, had been consulted by the latter before the Convention was concluded. Following this consultation, the Sultan had asked for his people to be given the right to gather jungle produce free of tax within the area of the island to be attributed to the State of North Borneo; such right was accorded for a 15–year period by Article VII of the Convention. As regards Sebatik, the Memorandum explains that the island’s partition had been agreed following a proposal by the Dutch Government and was considered necessary in order to provide access to the coastal regions allocated to each party. The Memorandum contains no reference to the disposition of other islands lying further to the east, and in particular there is no mention of Ligitan or Sipadan.

47. As regards the map appended to the Explanatory Memorandum, the Court notes that this shows four differently coloured lines. The blue line represents the boundary initially claimed by the Netherlands, the yellow line the boundary initially claimed by the BNBC, the green line the boundary proposed by the British Government and the

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red line the boundary eventually agreed. The blue and yellow lines stop at the coast; the green line continues for a short distance out to sea, whilst the red line continues out to sea along parallel 4° 10' N to the south of Mabul Island. In the Explanatory Memorandum there is no comment whatever on this extension of the red line out to sea; nor was it discussed in the Dutch Parliament. The Court notes that the map shows only a number of islands situated to the north of parallel 4° 10'; apart from a few reefs, no island is shown to the south of that line. The Court accordingly concludes that the Members of the Dutch Parliament were almost certainly unaware that two tiny islands lay to the south of the parallel and that the red line might be taken for an allocation line. In –this regard, the Court notes that there is nothing in the case file to suggest that Ligitan and Sipadan, or other islands such as Mabul, were territories disputed between Great Britain and the Netherlands at the time when the Convention was concluded. The Court cannot therefore accept that the red line was extended in order to settle any dispute in the waters beyond Sebatik, with the consequence that Ligitan and Sipadan were attributed to the Netherlands.

48. Nor can the Court accept Indonesia’s argument regarding the legal value of the map appended to the Explanatory Memorandum of the Dutch Government. The Court observes that the Explanatory Memorandum and map were never transmitted by the Dutch Government to the British Government, but were simply forwarded to the latter by its diplomatic agent in The Hague, Sir Horace Rumbold. This agent specified that the map had been published in the Official Journal of The Netherlands and formed part of a Report presented to the Second Chamber of the States–General. He added that "the map seems to be the only interesting feature of a document which does not otherwise call for special comment". However, Sir Horace Rumbold did not draw the attention of his authorities to the red line drawn on the map among other lines. The British Government did not react to this internal transmission. In these circumstances, such a lack of reaction to this line on the map appended to the Memorandum cannot be deemed to constitute acquiescence in this line. It follows from the foregoing that the map cannot be considered either an "agreement relating to [a] treaty which was made between all the parties in connection with the

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conclusion of the treaty", within the meaning of Article 31, paragraph 2 (a), of the Vienna Convention, or an "instrument which was made by [a] part[y] in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to that treaty", within the meaning of Article 31, paragraph 2 (b), of the Vienna Convention.

[pp. 652-653] 51. The Court considers that the object and purpose of the 1891 Convention was the delimitation of boundaries between the parties’ possessions within the island of Borneo itself, as shown by the preamble to the Convention, which provides that the parties were "desirous of defining the boundaries between the Netherland possessions in the Island of Borneo and the States in that island which are under British protection" (emphasis added by the Court). This interpretation is, in the Court’s view, supported by the very scheme of the 1891 Convention. Article I expressly provides that "[t]he boundary ... shall start from 4° 10' north latitude on the east coast of Borneo" (emphasis added by the Court). Articles II and III then continue the description of the boundary line westward, with its endpoint on the west coast being fixed by Article III. Since difficulties had been encountered concerning the status of the island of Sebatik, which was located directly opposite the starting point of the boundary line and controlled access to the rivers, the parties incorporated an additional provision to settle this issue. The Court does not find anything in the Convention to suggest that the parties intended to delimit the boundary between their possessions to the east of the islands of Borneo and Sebatik or to attribute sovereignty over any other islands. As far as the islands of Ligitan and Sipadan are concerned, the Court also observes that the terms of the preamble to the 1891 Convention are difficult to apply to these islands as they were little known at the time, as both Indonesia and Malaysia have acknowledged, and were not the subject of any dispute between Great Britain and the Netherlands.

52. The Court accordingly concludes that the text of Article IV of the 1891 Convention, when read in context and in the light of the Convention’s object and

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purpose, cannot be interpreted as establishing an allocation line determining sovereignty over the islands out to sea, to the east of the island of Sebatik. 7.9.10. Fourth Geneva Convention on the Protection of Civilian Persons in Time of War of 1949

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 173-177] 90. … with regard to the Fourth Geneva Convention, differing views have been expressed by the participants in these proceedings. Israel, contrary to the great majority of the other participants, disputes the applicability de jure of the Convention to the Occupied Palestinian Territory. In particular, in paragraph 3 of Annex I to the report of the Secretary–General, entitled "Summary Legal Position of the Government of Israel", it is stated that Israel does not agree that the Fourth Geneva Convention "is applicable to the occupied Palestinian Territory", citing "the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt" and inferring that it is "not a territory of a High Contracting Party as required by the Convention".

91. The Court would recall that the Fourth Geneva Convention was ratified by Israel on 6 July 1951 and that Israel is a party to that Convention. Jordan has also been a party thereto since 29 May 1951. Neither of the two States has made any reservation that would be pertinent to the present proceedings. Furthermore, Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral undertaking valid. It concluded, however, that it "[was] not -  as a depositary -  in a position to decide whether" "the request [dated 14 June 1989] from the Palestine Liberation Movement in the name of the ‘State of Palestine’ to accede" inter alia to the Fourth Geneva Convention "can be considered as an instrument of accession".

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92. Moreover, for the purpose of determining the scope of application of the Fourth Geneva Convention, it should be recalled that under common Article 2 of the four Conventions of 12 August 1949: "In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

93. After the occupation of the West Bank in 1967, the Israeli authorities issued an order No. 3 stating in its Article 35 that: "the Military Court ... must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the Protection of Civilian Persons in Time of War with respect to judicial procedures. In case of conflict between this Order and the said Convention, the Convention shall prevail." Subsequently, the Israeli authorities have indicated on a number of occasions that in fact they generally apply the humanitarian provisions of the Fourth Geneva Convention within the occupied territories. However, according to Israel’s position as briefly recalled in paragraph 90 above, that Convention is not applicable de jure within those territories because, under Article 2, paragraph 2, it applies only in the case of occupation of territories falling under the sovereignty of a High Contracting Party involved in an armed conflict. Israel explains that Jordan was admittedly a party to the Fourth Geneva Convention in 1967, and that an armed conflict broke out at that time between Israel and Jordan, but it goes on to observe that the territories occupied by Israel subsequent to that conflict had not previously fallen under Jordanian

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sovereignty. It infers from this that that Convention is not applicable de jure in those territories. According however to the great majority of other participants in the proceedings, the Fourth Geneva Convention is applicable to those territories pursuant to Article 2, paragraph 1, whether or not Jordan had any rights in respect thereof prior to 1967.

94. 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. 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 Objections, I.C.J. Reports 1996 (II), p. 812, para. 23; see, similarly, Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059, para. 18, and Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37.)

95. 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. 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.

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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. This interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find themselves, in whatever way, in the hands of the occupying Power. Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention. That interpretation is confirmed by the Convention’s travaux préparatoires. 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.

96. The Court would moreover note that the States parties to the Fourth Geneva Convention approved that interpretation at their Conference on 15 July 1999. They issued a statement in which they "reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". Subsequently, on 5 December 2001, the High Contracting Parties, referring in particular to Article 1 of the Fourth Geneva Convention of 1949, once again reaffirmed the "applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". They further reminded the Contracting Parties

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participating in the Conference, the parties to the conflict, and the State of Israel as occupying Power, of their respective obligations.

97. Moreover, the Court would observe that the ICRC, whose special position with respect to execution of the Fourth Geneva Convention must be "recognized and respected at all times" by the parties pursuant to Article 142 of the Convention, has also expressed its opinion on the interpretation to be given to the Convention. In a declaration of 5 December 2001, it recalled that "the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem".

98. The Court notes that the General Assembly has, in many of its resolutions, taken a position to the same effect. Thus on 10 December 2001 and 9 December 2003, in resolutions 56/60 and 58/97, it reaffirmed "that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967".

99. The Security Council, for its part, had already on 14 June 1967 taken the view in resolution 237 (1967) that "all the obligations of the Geneva Convention relative to the Treatment of Prisoners of War ... should be complied with by the parties involved in the conflict". Subsequently, on 15 September 1969, the Security Council, in resolution 271 (1969), called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation". Ten years later, the Security Council examined "the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967". In resolution 446 (1979) of 22 March 1979, the Security Council considered that those settlements had "no legal validity" and affirmed "once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967,

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including Jerusalem". It called "once more upon Israel, as the occupying Power, to abide scrupulously" by that Convention. On 20 December 1990, the Security Council, in resolution 681 (1990), urged "the Government of Israel to accept the de jure applicability of the Fourth Geneva Convention ... to all the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention". It further called upon "the high contracting parties to the said Fourth Geneva Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof". Lastly,

in

resolutions 799 (1992)

of

18 December 1992

and

904 (1994)

of

18 March 1994, the Security Council reaffirmed its position concerning the applicability of the Fourth Geneva Convention in the occupied territories.

100. The Court would note finally that the Supreme Court of Israel, in a judgment dated 30 May 2004, also found that: "The military operations of the [Israeli Defence Forces] in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 ... and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949."

101. 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. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.

[pp. 232-234 S.O. Kooijmans] 46. … I have difficulty in accepting the Court’s finding that the States parties to the Fourth Geneva Convention are under an obligation to ensure

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compliance by Israel with humanitarian law as embodied in that Convention (para. 159, operative subparagraph (3) (D), last part). In this respect the Court bases itself on common Article 1 of the Geneva Convention which reads: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." (Emphasis added.)

47. The Court does not say on what ground it concludes that this Article imposes obligations on third States not party to a conflict. The travaux préparatoires do not support that conclusion. According to Professor Kalshoven, who investigated thoroughly the genesis and further development of common Article 1, it was mainly intended to ensure respect of the conventions by the population as a whole and as such was closely linked to common Article 3 dealing with internal conflicts (F. Kalshoven, "The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit" in Yearbook of International Humanitarian Law, Vol. 2 (1999), p. 3-61). His conclusion from the travaux préparatoires is: "I have not found in the records of the Diplomatic Conference even the slightest awareness on the part of government delegates that one might ever wish to read into the phrase ‘to ensure respect’ any undertaking by a contracting State other than an obligation to ensure respect for the Conventions by its people ‘in all circumstances’." (Ibid., p. 28.)

48. Now it is true that already from an early moment the ICRC in its (non-authoritative) commentaries on the 1949 Convention has taken the position that common Article 1 contains an obligation for all States parties to ensure respect by other States parties. It is equally true that the Diplomatic Conference which adopted the 1977 Additional Protocols incorporated common Article 1 in the First Protocol. But at no moment did the Conference deal with its presumed implications for third States.

49. Hardly less helpful is the Court’s reference to common Article 1 in the Nicaragua case. The Court, without interpreting its terms, observed that "such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression". The Court continued that "The United States [was] thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua" to act in violation of common Article 3 (Military and Paramilitary

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Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 114, para. 220). But this duty of abstention is completely different from a positive duty to ensure compliance with the law.

50. Although I certainly am not in favour of a restricted interpretation of common Article 1, such as may have been envisaged in 1949, I simply do not know whether the scope given by the Court to this Article in the present Opinion is correct as a statement of positive law. Since the Court does not give any argument in its reasoning, I do not feel able to support its finding. Moreover, I fail to see what kind of positive action, resulting from this obligation, may be expected from individual States, apart from diplomatic demarches.

7.9.11. International Covenant on Civil and Political Rights of 1966

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 178-180] 108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." This provision can be interpreted as covering only individuals who are both present within a State’s territory and subject to that State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that territory but subject to that State’s jurisdiction. The Court will thus seek to determine the meaning to be given to this text.

109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the

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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. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina (case No. 52/79, López Burgos v. Uruguay; case No. 56/79, Lilian Celiberti de Casariego v. Uruguay). It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany (case No. 106/81, Montero v. Uruguay). The travaux préparatoires 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–à–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. V, para. 4 (1955)). In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question "whether individuals resident in the occupied territories were indeed subject to Israel’s jurisdiction" for purposes of the application of the Covenant (CCPR/C/SR.1675, para. 21). Israel took the position that "the Covenant and similar instruments did not apply directly to the current situation in the occupied territories" (ibid., para. 27). The Committee, in its concluding observations after examination of the report, expressed concern at Israel’s attitude and pointed "to the long–standing presence of Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein" (CCPR/C/79/Add.93, para. 10). In 2003 in face of Israel’s consistent position, to the

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effect that "the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ...", the Committee reached the following conclusion: "in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law" (CCPR/CO/78/ISR, para. 11).

111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory. 7.9.12. International Covenant on Economic, Social and Cultural Rights of 1966

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 180-181] 112. 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 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". It is not without relevance to recall in this regard the position taken by Israel in its reports to the Committee on Economic, Social and Cultural Rights. In its initial report to the Committee of 4 December 1998, Israel provided "statistics indicating the enjoyment of the rights enshrined in the Covenant by Israeli settlers in the occupied

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Territories". The Committee noted that, according to Israel, "the Palestinian population within the same jurisdictional areas were excluded from both the report and the protection of the Covenant" (E/C.12/1/Add. 27, para. 8). The Committee expressed its concern in this regard, to which Israel replied in a further report of 19 October 2001 that it has "consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction" (a formula inspired by the language of the International Covenant on Civil and Political Rights). This position, continued Israel, is "based on the well–established distinction between human rights and humanitarian law under international law". It added: "the Committee’s mandate cannot relate to events in the West Bank and the Gaza Strip, inasmuch as they are part and parcel of the context of armed conflict as distinct from a relationship of human rights" (E/1990/6/Add. 32, para. 5). In view of these observations, the Committee reiterated its concern about Israel’s position and reaffirmed "its view that the State party’s obligations under the Covenant apply to all territories and populations under its effective control" (E/C.12/1/Add.90, paras. 15 and 31). For the reasons explained in paragraph 106 above, the Court cannot accept Israel’s view. It would also observe that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights. Furthermore, it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities.

8. VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES 8.1. General Questions

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [pp. 185 D.O. Van den Wyngaert] 84. ... I also believe, assuming again that there has been an infringement of an international obligation by Belgium, that the declaratory part of the

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Territories". The Committee noted that, according to Israel, "the Palestinian population within the same jurisdictional areas were excluded from both the report and the protection of the Covenant" (E/C.12/1/Add. 27, para. 8). The Committee expressed its concern in this regard, to which Israel replied in a further report of 19 October 2001 that it has "consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction" (a formula inspired by the language of the International Covenant on Civil and Political Rights). This position, continued Israel, is "based on the well–established distinction between human rights and humanitarian law under international law". It added: "the Committee’s mandate cannot relate to events in the West Bank and the Gaza Strip, inasmuch as they are part and parcel of the context of armed conflict as distinct from a relationship of human rights" (E/1990/6/Add. 32, para. 5). In view of these observations, the Committee reiterated its concern about Israel’s position and reaffirmed "its view that the State party’s obligations under the Covenant apply to all territories and populations under its effective control" (E/C.12/1/Add.90, paras. 15 and 31). For the reasons explained in paragraph 106 above, the Court cannot accept Israel’s view. It would also observe that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights. Furthermore, it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities.

8. VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES 8.1. General Questions

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [pp. 185 D.O. Van den Wyngaert] 84. ... I also believe, assuming again that there has been an infringement of an international obligation by Belgium, that the declaratory part of the

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Judgment should have sufficed as reparation for the moral injury suffered by Congo. If there was an act constituting an infringement, which I do not believe exists (a Belgian arrest warrant that was not contrary to customary international law and that was moreover never enforced), it was trivial in comparison with the Congo’s failure to comply with its obligation under Article 146 of the IVth Geneva Convention (investigating and prosecuting charges of war crimes and crimes against humanity committed on its territory). The Congo did not come to the International Court with clean hands, and its Application should have been rejected. De minimis non curat lex62.

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[p. 249-250] 92. Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties;

93. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law; whereas in particular they are required to fulfil their obligations under the United Nations Charter; whereas the Court cannot but note in this respect that the Security Council has adopted a great number of resolutions concerning the situation in the region, in particular resolutions 1234 (1999), 1291 (2000), 1304 (2000), 1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002) and 1417 (2002); whereas the Security Council has demanded on many occasions that "all the parties to the conflict put an ... end to violations of human rights and international humanitarian law"; and whereas it has inter alia reminded "all parties of their 62

This expression is not synonymous with de minimis non curat praetor in civil law systems. See Black’s Law Dictionary, West Publishing Co.

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obligations with respect to the security of civilian populations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949", and added that "all forces present on the territory of the Democratic Republic of the Congo are responsible for preventing violations of international humanitarian law in the territory under their control"; whereas the Court wishes to stress the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently;

*

8.2. Violation of International Law

8.3. Treaty Violations

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 488-489] 61. The United States also contends that Germany's submissions are inadmissible on the ground that Germany seeks to have a standard applied to the United States that is different from its own practice. According to the United States, Germany has not shown that its system of criminal justice requires the annulment of criminal convictions where there has been a breach of the duty of consular notification; and that the practice of Germany in similar cases has been to do no more than offer an apology. The United States maintains that it would be contrary to basic principles of administration of justice and equality of the Parties to apply against the United States alleged rules that Germany appears not to accept for itself.

62. Germany denies that it is asking the United States to adhere to standards which Germany itself does not abide by; it maintains that its law and practice is fully in compliance with the standards which it invokes. In this regard, it explains that the German Code of Criminal Procedure provides a ground of appeal where a legal norm,

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including a norm of international law, is not applied or incorrectly applied and where there is a possibility that the decision was impaired by this fact.

63. The Court need not decide whether this argument of the United States, if true, would result in the inadmissibility of Germany's submissions. Here the evidence adduced by the United States does not justify the conclusion that Germany's own practice fails to conform to the standards it demands from the United States in this litigation. The United States relies on certain German cases to demonstrate that Germany has itself proffered only an apology for violating Article 36 of the Vienna Convention, and that State practice shows that this is the appropriate remedy for such a violation. But the cases concerned entailed relatively light criminal penalties and are not evidence as to German practice where an arrested person, who has not been informed without delay of his or her rights, is facing a severe penalty as in the present case. 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.

[p. 489] 65. Germany's first submission requests the Court to adjudge and declare: "that the United States, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36 subparagraph 1 (b) of the Vienna Convention on Consular Relations, and by depriving Germany of the possibility of rendering consular assistance, which ultimately resulted in the execution of Karl and Walter LaGrand, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, under Articles 5 and 36 paragraph 1 of the said Convention".

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[p. 491-492] 73. ... The Court observes, in this connection, that the United States does not deny that it violated paragraph 1 (b) in relation to Germany. The Court also notes that as a result of this breach, Germany did not learn until 1992 of the detention, trial and sentencing of the LaGrand brothers. 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.

[p. 495] 79. The Court will now consider Germany's second submission, in which it asks the Court to adjudge and declare: "that the United States, by applying rules of its domestic law, in particular the doctrine of procedural default, which barred Karl and Walter LaGrand from raising their claims under the Vienna Convention on Consular Relations, and by ultimately executing them, violated its international legal obligation to Germany under Article 36, paragraph 2, of the Vienna Convention to give full effect to the purposes for which the rights accorded under Article 36 of the said Convention are intended".

[pp. 497-498] 88. Article 36, paragraph 2, of the Vienna Convention reads as follows: "The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended."

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89. 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 1, 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).

90. 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 1, 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.

91. In this case, Germany had the right at the request of the LaGrands "to arrange for [their] legal representation" and was eventually able to provide some assistance to that effect. By that time, however, because of the failure of the American authorities to comply with their obligation under Article 36, paragraph 1 (b), the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitutional grounds. 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 1, prevented Germany, in a timely fashion, from retaining private counsel

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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.

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002 [p. 284 S.O. Mavungu] 45. The issue of the Court’s territorial or ratione loci jurisdiction over violations of human rights alleged to have taken place on the territory of the Applicant and attributable to the Respondent has not been raised at this stage of the proceedings. It is generally accepted that a State party to a convention can incur responsibility if it commits a wrongful act contrary to that convention on the territory of another State party. Thus in the case of Loizidou v. Turkey the European Court of Human Rights, interpreting the term “jurisdiction” in Article 1 of the European Human Rights Convention, stated the following: “ the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful –it exercises effective control of an area outside its national territory” 63.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003 [pp. 383-384 S.O. Rigaux] 26. In its Rejoinder of 23 March 2001 (Nos. 3.55 to 3.59), the United States puts forward two arguments in justification, one erroneous and the other audacious. The first has already been refuted: the fact that production at some installations had to be halted as a result of the Iraqi attacks is irrelevant because the subsequent destruction of those installations by United States forces destroyed the repair work being completed and delayed the resumption of operations. The justification which must be adjudged audacious

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seeks to found itself on the United States President’s Executive Order of 29 October 1987, as a result of which all Iranian oil imports by the United States purportedly ceased. The Court is wrong in accepting this ground for holding Article X, paragraph 1, inapplicable (see paras. 93 and 94 of the Judgment). In so doing, it upholds the right of a State party to a bilateral treaty to exonerate itself by a unilateral administrative act from responsibility engaged by an earlier act committed in violation of that treaty. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court found that the unilateral decision to impose an embargo on ships registered in Nicaragua constituted per se a violation of the Treaty of Friendship between the United States and Nicaragua (I.C.J. Reports 1986, p. 140, para. 279). Whether viewed as cumulative to the use of force, as in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), or as potentially exonerating the State from responsibility incurred as a result of the use of force, as is claimed in the present case, a unilateral administrative measure adopted by a State party to a treaty has to be assessed in the light of the treaty obligations of both parties; it cannot have the effect of discharging one of the States from any of those obligations.

8.4. Imputability

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003 [pp. 353-359 S.O. Simma] 62. One remark is to be made right at the outset: in the present case the problem of attribution poses itself almost exclusively with regard to minelaying by the parties to the Gulf war. But as referred to above, in addition to mine attacks, Iran also carried out attacks by helicopters, other aircraft and patrol boats, which largely contributed to the unsafe shipping conditions in the Gulf. Whereas identifying the State responsible for particular minelaying activities is not an easy exercise, identifying the State engaging in attacks by helicopters or patrol boats is much less difficult. Attribution of responsibility therefore can only be problematic with respect to minelaying. As for attacks by helicopters,

63

Cited by Vincent Berger, Jurisprudence de la Cour européenne des droits de l’homme, 2000, p. 554; see also Gérard Cohen–Jonathan, La convention européenne des droits de l’homme, 1989, p. 94.

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patrol boats, etc., against ships engaged in commerce between Iran and the United States, there is hardly any doubt that they were carried out by Iran. Therefore, when we move away from the mines, so to speak, the generic counter–claim becomes free of the problem of attribution. Hence, the following reasoning is in essence devoted to the problem of attribution of minelaying in the Gulf.

63. As I have just demonstrated, attribution of responsibility for such minelaying activities certainly represents the principal challenge to the generic counter–claim. Against this challenge militates a sense of fairness. Yet, the thought that Iran could be held responsible for acts that could not be attributed to it beyond a certain threshold of proof is also troubling. The question we face is thus the following: how can we hold Iran responsible for acts which, even though they did create impediments to the freedom of commerce and navigation, cannot be attributed to Iran with certainty?

64. It is common knowledge that the Iran–Iraq war had a destabilizing effect on the regional economy, including American commerce going through the Gulf. This destabilizing effect is easily measurable by the increase in costs for doing commerce in the Gulf, as the evidence discussed above shows. It is more difficult – if not impossible – to measure with any exactitude the negative impact of individual Iraqi or Iranian actions on the economic conditions of commerce, let alone on American commerce specifically. The damage caused by these actions, i.e., the impediment to the freedom of commerce and navigation protected by the 1955 Treaty, is indivisible and as such cannot be apportioned between Iran and Iraq.

65. Responsibility, however, is another matter. It is clear that a series of actions taken by each party to the war necessarily disturbed the economic environment (even if unintentionally). But what conclusion is to be drawn from this? Should we hold both States equally responsible for the impediments caused to commerce and navigation? Or can neither of the two States be held responsible because it is impossible to determine precisely who did what?

66. In order to find a solution to our dilemma, I have engaged in some research in comparative law to see whether anything resembling a "general principle of law" within the meaning of Article 38, paragraph 1 (c), of the Statute of the Court can be developed from solutions arrived at in domestic law to come to terms with the problem of multiple tortfeasors. I submit that we

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find ourselves here in what I would call a textbook situation calling for such an exercise in legal analogy. To state its result forthwith: research into various common law jurisdictions as well as French, Swiss and German tort law indicates that the question has been taken up and solved by these legal systems with a consistency that is striking.

…

74. On the basis of the (admittedly modest) study of comparative tort law thus provided, I venture to conclude that the principle of joint–and–several responsibility common to the jurisdictions that I have considered can properly be regarded as a "general principle of law" within the meaning of Article 38, paragraph 1 (c), of the Court’s Statute. I submit that this principle should have been applied in our present case to the effect that, even though responsibility for the impediment caused to United States commerce with Iran cannot (and ought not, see infra) be apportioned between Iran and Iraq, Iran should nevertheless have been held in breach of its treaty obligations.

75. Another authoritative source addressing the issue of a plurality of responsible States can be found in the Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001. The ILC’s solution is in conformity with the result of the comparative research I have just presented. Article 47 states: "Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act."

76. In the context of the specific variant of the United States counter–claim, Article 47 would apply only if both Iran and Iraq were responsible for a given action − for instance, if Iran had carried out an attack against a ship engaged in treaty–protected commerce, jointly planning and co–ordinating the operation with Iraq. However, in the present case, the reality is such that the two States never acted in concert with respect to a specific incident, and thus it always was either Iran or Iraq which was responsible for a given incident. As a result, Article 47, which requires both States to be responsible for the same internationally wrongful act, cannot be applied to the specific counter–claim.

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77. Applied to the generic counter–claim, on the other hand, Article 47 is very helpful. In the context of the generic counter–claim, the "internationally wrongful act" is constituted by the creation of negative economic, political and safety conditions in the Gulf rather than by a specific incident. The bringing about of this environment, taken as a whole, is attributable to both States, as it is common knowledge that they both participated in the worsening of the conditions prevailing in the Gulf at the time. The difference is clear: unlike the specific claim, where only one State is responsible for the act of violating international law, the generic claim falls within the scope of ILC Article 47 because the two States are responsible for the same act. It is the creation of dangerous conditions for shipping and doing commerce in the Gulf which constitutes the internationally wrongful act within the meaning of Article 47. By application of Article 47 to the generic counter–claim, the United States could invoke the responsibility of either State, that is, also of Iran, individually. Thus, in the principle underlying Article 47, and in the "generic" identification of the internationally wrongful act, lies another basis on which Iran should have been held in violation of its Treaty obligations and the generic counter–claim upheld by the Court.

78. As a result, the problem of attributing responsibility in the face of factually "indivisible" wrongful acts − which I presented earlier as the principal obstacle to the admission of the counter–claim − could have been overcome pursuant both to the general principle that multiple tortfeasors can be held responsible individually even when the damage cannot be apportioned among them, and the principles embodied in ILC Article 47.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 226] 160. The Court concludes that there is no credible evidence to suggest that Uganda created the MLC64. Uganda has acknowledged giving training and military support and there is evidence to that effect. The Court has not received probative evidence that Uganda controlled, or could control, the manner in which Mr. Bemba put such assistance to use. In the view of the Court, the conduct of the MLC was not that of "an organ" of Uganda (Article 4, International Law Commission Draft Articles on

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Responsibility of States for internationally wrongful acts, 2001), nor that of an entity exercising elements of governmental authority on its behalf (Article 5). The Court has considered whether the MLC’s conduct was "on the instructions of, or under the direction or control of" Uganda (Article 8) and finds that there is no probative evidence by reference to which it has been persuaded that this was the case. Accordingly, no issue arises in the present case as to whether the requisite tests are met for sufficiency of control of paramilitaries (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 62-65, paras. 109-115).

[p. 242] 213. The Court turns now to the question as to whether acts and omissions of the UPDF and its officers and soldiers are attributable to Uganda. 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). 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.

214. It is furthermore irrelevant for the attribution of their conduct to Uganda whether the UPDF personnel acted contrary to the instructions given or exceeded their authority. 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

64

Mouvement de libération du Congo.

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Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces.

[pp. 252-253] 245. As the Court has already stated (see paragraph 180 above), the acts and omissions of members of Uganda’s military forces in the DRC engage Uganda’s international responsibility in all circumstances, whether it was an occupying Power in particular regions or not. Thus, whenever members of the UPDF were involved in the looting, plundering and exploitation of natural resources in the territory of the DRC, they acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign army in the territory where it is present. The Court notes in this regard that both Article 47 of the Hague Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949 prohibit pillage. The Court further observes that both the DRC and Uganda are parties to the African Charter on Human and Peoples’ Rights of 27 June 1981, which in paragraph 2 of Article 21, states that "[i]n case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation".

246. The Court finds that there is sufficient evidence to support the DRC’s claim that Uganda violated its duty of vigilance by not taking adequate measures to ensure that its military forces did not engage in the looting, plundering and exploitation of the DRC’s natural resources. As already noted, it is apparent that, despite instructions from the Ugandan President to ensure that such misconduct by UPDF troops cease, and despite assurances from General Kazini that he would take matters in hand, no action was taken by General Kazini and no verification was made by the Ugandan Government that orders were being followed up (see paragraphs 238-239 above). In particular the Court observes that the Porter Commission stated in its Report that "[t]he picture that emerges is that of a deliberate and persistent indiscipline by commanders in the field, tolerated, even encouraged and covered by General Kazini, as shown by the incompetence or total lack of inquiry and failure to deal effectively with breaches of discipline at senior levels".

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(Also of relevance in the Porter Commission Report are paragraphs 13.1 "UPDF Officers conducting business", 13.5 "Smuggling" and 14.5 "Allegations against General Kazini"). It follows that by this failure to act Uganda violated its international obligations, thereby incurring its international responsibility. In any event, whatever measures had been taken by its authorities, Uganda’s responsibility was nonetheless engaged by the fact that the unlawful acts had been committed by members of its armed forces (see paragraph 214 above).

247. As for the claim that Uganda also failed to prevent the looting, plundering and illegal exploitation of the DRC’s natural resources by rebel groups, the Court has already found that the latter were not under the control of Uganda (see paragraph 160 above). Thus, with regard to the illegal activities of such groups outside of Ituri, it cannot conclude that Uganda was in breach of its duty of vigilance.

248. 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. It is apparent from various findings of the Porter Commission that rather than preventing the illegal traffic in natural resources, including diamonds, high-ranking members of the UPDF facilitated such activities by commercial entities. In this regard, the Report of the Commission mentions a company referred to as "Victoria" (see paragraph 240 above), which operated, inter alia, in Bunia. In particular the Report indicates that "General Kazini gave specific instructions to UPDF Commanders in Isiro, Bunia, Beni, Bumba, Bondo and Buta to allow the Company to do business uninterrupted in the areas under their command". (Also of relevance in the Report of the Commission are paragraphs 18.5.1 "Victoria Group", 20.3 "General James Kazini" and 21.3 "The Diamond Link".)

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249. Thus the Court finds that it has been proven that Uganda has not complied with its obligations as an occupying Power in Ituri district. The Court would add that Uganda’s argument that any exploitation of natural resources in the DRC was carried out for the benefit of the local population, as permitted under humanitarian law, is not supported by any reliable evidence.

250. The Court concludes that it is in possession of sufficient credible evidence to find that Uganda is internationally responsible for acts of looting, plundering and exploitation of the DRC’s natural resources committed by members of the UPDF in the territory of the DRC, for violating its obligation of vigilance in regard to these acts and for failing to comply with its obligations under Article 43 of the Hague Regulations of 1907 as an occupying Power in Ituri in respect of all acts of looting, plundering and exploitation of natural resources in the occupied territory.

[pp. 377-378 D.O. Kateka] 54. In this respect, I find myself in disagreement with the Court’s conclusion that Uganda is internationally responsible for the acts of exploitation of the DRC’s natural resources and has violated its obligation of due diligence in regard to these acts, of failing to comply with its obligation as an occupying Power in Ituri. The Ugandan soldiers, who committed acts of looting, did so in violation of orders from the highest Ugandan authorities. In his radio message of 15 December 1998 to COs and all UPDF units in the DRC, President Museveni said the following: "1. Ensure that there is no officer or man of our forces in Congo who engages in business. 2. Also report to me any other public servant whether currently based in Congo or not who tries to engage in business in Congo." (Rejoinder of Uganda (RU), Vol. III, Ann. 31.) Hence, in my view, individual acts of UPDF soldiers, committed in their private capacity and in violation of orders, cannot lead to attribution of wrongful acts. Paragraph 8 of the Commentary to Article 7 of the draft Articles of the International Law Commission 2001 distinguishes between unauthorized, but still "official" conduct, on the one hand and "private" conduct on the other.

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8.5. Fault and due Diligence 8.6. Participation

8.7. Violation of Duty to Prevent Damage

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 268] 300. As to the question of whether the DRC breached its duty of vigilance by tolerating anti-Ugandan rebels on its territory, the Court notes that this is a different issue from the question of active support for the rebels, because the Parties do not dispute the presence of the anti-Ugandan rebels on the territory of the DRC as a factual matter. The DRC recognized that anti-Ugandan groups operated on the territory of the DRC from at least 1986. 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).

301. The Court has noted that, according to Uganda, the rebel groups were able to operate "unimpeded" in the border region between the DRC and Uganda "because of its mountainous terrain, its remoteness from Kinshasa (more than 1,500 km), and the almost complete absence of central government presence or authority in the region during President Mobutu’s 32-year term in office". During the period under consideration both anti-Ugandan and anti-Zairean rebel groups operated in this area. Neither Zaire nor Uganda were in a position to put an end to their activities. However, in the light of the evidence before it, the Court cannot conclude that the absence of action by Zaire’s Government against the rebel groups in the border area is tantamount to "tolerating" or "acquiescing" in their activities. Thus,

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the part of Uganda’s first counter-claim alleging Congolese responsibility for tolerating the rebel groups prior to May 1997 cannot be upheld.

[pp. 351-352 Decl. Tomka] 1. … But, to my regret, I cannot subscribe to the reasoning and conclusion of the majority that the Democratic Republic of Congo (DRC) has not breached its duty of vigilance during the period 1994-1997 by tolerating Ugandan rebel movements’ use of the DRC’s territory to launch attacks on Uganda (paragraphs 300-301). As the Court observes, "[t]he DRC recognized that anti-Ugandan groups operated on the territory of the DRC from at least 1986" (paragraph 300). It is not disputed that in the period relevant for this part of Uganda’s claim (1994-May 1997), the anti-Ugandan rebel movements used the territory of the then Zaire to launch attacks against Uganda and its population who were victims of these attacks. Zaire was well aware of the situation.

2. Sovereignty of a State does not involve only rights but also obligations of a territorial State. The State has an obligation not only to protect its own people, but also to avoid harming its neighbours. This Court, in the Corfu Channel case, confirmed the "general and wellrecognized principle" according to which every State has the "obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States" (Merits, Judgment, I.C.J. Reports 1949, p. 22).

3. In accordance with the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, provisions which are declaratory of customary rules, "every State has the duty to refrain from ... acquiescing in organised activities within its territory directed towards the commission of such acts [i.e. acts of civil strife or terrorist acts] when the acts involve a threat or use of force"; and, "no State shall ... tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State" (A/RES/2625 (XXV)).

4. The duty of vigilance required Zaire to exert all good efforts in order to prevent its territory from being used to the detriment of Uganda. Whether Zaire complied with such a duty should be determined on the basis of Zaire’s conduct. The geomorphological features or size of the territory does not relieve a State of its duty of vigilance nor render it less strict. Nor does the absence of central governmental presence in certain areas of a State’s territory set aside the

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duty of vigilance for a State in relation to those areas. Otherwise such absence, coupled with the attacks originating in that territory would have justified the neighbouring State, victim of attack, to step in and to put an end to the attacks. The duty of vigilance is an obligation of conduct, not an obligation of result. It may happen that despite all good efforts of a State, which has a duty of vigilance, the neighbouring State will nevertheless suffer harm. The occurrence of harm does not necessarily prove that the duty of vigilance was breached. But its occurrence creates the presumption that the obligation of vigilance has not been complied with. In such a case it would be for the State which has the duty of vigilance (i.e., the DRC in the present case) to demonstrate that it exerted all good efforts to prevent its territory from being misused for launching attacks against its neighbour in order to rebut such a presumption.

5. The DRC has not provided the Court with credible information on any such bona fide effort. Therefore, I am unable to concur with the view of the majority that the absence of action by Zaire’s Government against the rebel groups in the border area is not tantamount to "tolerating" or "acquiescing" in their activities (paragraph 301). I am convinced that justice would have been done if the DRC were found responsible for Zaire’s toleration of the activities of (anti-Ugandan) rebel groups from its territory against Uganda, in the first period up to May 1997, that is, for its own failure to comply with its obligation of vigilance.

8.8. Circumstances Precluding Wrongfulness

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 194-195] 140. The Court has, however, considered whether Israel could rely on a state of necessity which would preclude the wrongfulness of the construction of the wall. In this regard the Court is bound to note that some of the conventions at issue in the present instance include qualifying clauses of the rights guaranteed or provisions for derogation (see paragraphs 135 and 136 above). Since those treaties already address considerations of this kind within their own provisions, it might be asked whether a state of necessity as recognized in customary international law could be

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invoked with regard to those treaties as a ground for precluding the wrongfulness of the measures or decisions being challenged. However, the Court will not need to consider that question. 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 "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). One of those conditions was stated by the Court in terms used by the International Law Commission, in a text which in its present form requires that the act being challenged be "the only way for the State to safeguard an essential interest against a grave and imminent peril" (Article 25 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts; see also former Article 33 of the Draft Articles on the International Responsibility of States, with slightly different wording in the English text). In the light of the material before it, the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.

141. The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens. The measures taken are bound nonetheless to remain in conformity with applicable international law.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 266] 293. 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

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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). Similarly, the International Law Commission, in its commentary on Article 45 of the Draft Articles on Responsibility of States for internationally wrongful acts, points out that "[a]lthough it may be possible to infer a waiver from the conduct of the States concerned or from a unilateral statement, the conduct or statement must be unequivocal" (ILC report, doc. A/56/10, 2001, p. 308). In the Court’s view, nothing in the conduct of Uganda in the period after May 1997 can be considered as implying an unequivocal waiver of its right to bring a counter-claim relating to events which occurred during the Mobutu régime.

[pp. 298-299 S.O. Parra-Aranguren] 25. While I accept the principles of international law enunciated in General Assembly resolution 2625 (XXV) (24 October 1970) mentioned in paragraph 162 of the Judgment, they do not, in my view, apply to the present case. As a consequence of the dialogue among the parties, a new national government was installed on 1 July 2003 in the DRC with participation of the leaders of the rebel forces, which were integrated into the Congolese army; this reconciliation, in my opinion, exonerates Uganda from any possible international responsibility arising out of the assistance it gave in the past to the Rally for the Congolese Democracy (RCD) and to the Movement for the Liberation of the Congo (MLC).

[p. 367 D.O. Kateka] 22. Thus, while agreeing with the Court that the Lusaka Agreement did not have a retrospective effect, I do not share the Court’s view that the calendar for withdrawal (of foreign forces) and its relationship to the series of major events did not constitute consent by the Congo to the presence of Ugandan forces for at least 180 days from 10 July 1999 and beyond that time if the envisaged necessary major events did not occur. As counsel for Uganda argued during the oral pleadings, there is a linkage between the disarmament of the armed groups and the subsequent withdrawal of armed forces of foreign States from the DRC. This is borne out by paragraph 12 of Annex B to the Ceasefire

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Agreement, where the timetable shows that the withdrawal of foreign forces would not occur until after a successful conclusion of the Congolese national dialogue (D-Day2 + 90 days), the disarmament of armed groups (D-Day + 120 days) and the orderly withdrawal of all foreign forces (D-Day + 180 days) (CMU, Vol. II, Ann. 45, Ann. B). Indeed there was a delay in the implementation of the Agreement because the inter-Congolese dialogue did not start as envisaged in the timetable.

23. The Court, having reached a wrong interpretation, in my view, of the Lusaka Agreement, proceeds to state that the Luanda Agreement of September 2002, a bilateral agreement between the DRC and Uganda, alters the terms of the multilateral Lusaka Agreement. I am of the view that the other parties to the Lusaka Agreement (i.e., Angola, Namibia, Rwanda and Zimbabwe) would have objected if the bilateral alteration caused problems. The Luanda Agreement gave impetus to the stalled implementation of the Lusaka Agreement. I differ once again with the Court’s conclusion that the various treaties involving the DRC and Uganda did not constitute consent to the presence of Ugandan troops in the territory of the DRC after July 1999. "Lusaka" and more explicitly "Luanda" continued the validation in law of Uganda’s military presence in the DRC.

8.9. Consequences of an Internationally Wrongful Act

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 489] 63. ... The United States relies on certain German cases to demonstrate that Germany has itself proffered only an apology for violating Article 36 of the Vienna Convention, and that State practice shows that this is the appropriate remedy for such a violation. But the cases concerned entailed relatively light criminal penalties and are not evidence as to German practice where an arrested person, who has not been informed without delay of his or her rights, is facing a severe penalty as in the present case. 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

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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.

[p. 489] 65. Germany's first submission requests the Court to adjudge and declare: "that the United States, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36 subparagraph 1 (b) of the Vienna Convention on Consular Relations, and by depriving Germany of the possibility of rendering consular assistance, which ultimately resulted in the execution of Karl and Walter LaGrand, violated its international legal obligations to Germany, in its own right and in its right of diplomatic protection of its nationals, under Articles 5 and 36 paragraph 1 of the said Convention".

[p. 491-492] 73. ... The Court observes, in this connection, that the United States does not deny that it violated paragraph 1 (b) in relation to Germany. The Court also notes that as a result of this breach, Germany did not learn until 1992 of the detention, trial and sentencing of the LaGrand brothers. 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.

[pp. 508-509] 116. The Court observes finally that in the third submission Germany requests the Court to adjudge and declare only that the United States violated its international legal obligation to comply with the Order of 3 March 1999; it contains no other request regarding that violation. Moreover, the Court points out that the United States was under great time pressure in this case, due to the circumstances in which

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Germany had instituted the proceedings. The Court notes moreover that at the time when the United States authorities took their decision the question of the binding character of orders indicating provisional measures had been extensively discussed in the literature, but had not been settled by its jurisprudence. The Court would have taken these factors into consideration had Germany's submission included a claim for indemnification.

117. Finally, the Court will consider Germany's fourth submission, in which it asks the Court to adjudge and declare "that the United States shall provide Germany an assurance that it will not repeat its unlawful acts and that, in any future cases of detention of or criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations. In particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by a violation of the rights under Article 36."

[pp. 510-514] 120. The Court observes that in its fourth submission Germany seeks several assurances. First it seeks a straightforward assurance that the United States will not repeat its unlawful acts. This request does not specify the means by which non– repetition is to be assured. Additionally, Germany seeks from the United States that "in any future cases of detention of or criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations". This request goes further, for, by referring to the law of the United States, it appears to require specific measures as a means of preventing recurrence. Germany finally requests that "[i]n particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions

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impaired by a violation of the rights under Article 36". This request goes even further, since it is directed entirely towards securing specific measures in cases involving the death penalty.

121. Turning first to the general demand for an assurance of non–repetition, the Court observes that it has been informed by the United States of the "substantial measures [which it is taking] aimed at preventing any recurrence" of the breach of Article 36, paragraph 1 (b). Throughout these proceedings, oral as well as written, the United States has insisted that it "keenly appreciates the importance of the Vienna Convention's consular notification obligation for foreign citizens in the United States as well as for United States citizens travelling and living abroad"; that "effective compliance with the consular notification requirements of Article 36 of the Vienna Convention requires constant effort and attention"; and that "the Department of State is working intensively to improve understanding of and compliance with consular notification and access requirements throughout the United States, so as to guard against future violations of these requirements". The United States points out that "[t]his effort has included the January 1998 publication of a booklet entitled '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', and development of a small reference card designed to be carried by individual arresting officers." According to the United States, it is estimated that until now over 60,000 copies of the brochure as well as over 400,000 copies of the pocket card have been distributed to federal, state and local law enforcement and judicial officials throughout the United States. The United States is also conducting training programmes reaching out to all levels of government. In the Department of State a permanent office to focus on United States and foreign compliance with consular notification and access requirements has been created.

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122. Germany has stated that it "does not consider the so–called 'assurances' offered by the Respondent as adequate". It says "[v]iolations of Article 36 followed by death sentences and executions cannot be remedied by apologies or the distribution of leaflets. An effective remedy requires certain changes in US law and practice". In order to illustrate its point, Germany has presented to the Court a "[l]ist of German nationals detained after January 1, 1998, who claim not to have been informed of their consular rights". The United States has criticized this list as misleading and inaccurate.

123. The Court notes that the United States has acknowledged that, in the case of the LaGrand brothers, it did not comply with its obligations to give consular notification. The United States has presented an apology to Germany for this breach. 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 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties. In this respect, the Court has taken note of the fact that the United States repeated in all phases of these proceedings that it is carrying out a vast and detailed programme in order to ensure compliance by its competent authorities at the federal as well as at the state and local levels with its obligation under Article 36 of the Vienna Convention.

124. The United States has provided the Court with information, which it considers important, on its programme. 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

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implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany's request for a general assurance of non–repetition.

125. The Court will now examine the other assurances sought by Germany in its fourth submission. The Court observes in this regard that it can determine the existence of a violation of an international obligation. If necessary, it can also hold that a domestic law has been the cause of this violation. In the present case the Court has made its findings of violations of the obligations under Article 36 of the Vienna Convention when it dealt with the first and the second submission of Germany. But it has not found that a United States law, whether substantive or procedural in character, is inherently inconsistent with the obligations undertaken by the United States in the Vienna Convention. In the present case the violation of Article 36, paragraph 2, was caused by the circumstances in which the procedural default rule was applied, and not by the rule as such. In the present proceedings the United States has apologized to Germany for the breach of Article 36, paragraph 1, and Germany has not requested material reparation for this injury to itself and to the LaGrand brothers. It does, however, seek assurances: "that, in any future cases of detention or of criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Vienna Convention on Consular Relations", and that "[i]n particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by the violation of the rights under Article 36". 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

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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.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 31-32] 75. The Court has already concluded (see paragraphs 70 and 71) that the issue and circulation of the arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under international law. Those acts engaged Belgium’s international responsibility. The Court considers that the findings so reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo.

76. However, as the Permanent Court of International Justice stated in its Judgment of 13 September 1928 in the case concerning the Factory at Chorzów: "[t]he 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" (P.C.I.J., Series A, No. 17, p. 47). In the present case, "the situation which would, in all probability, have existed if [the illegal act] had not been committed" cannot be re–established merely by a finding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must,

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by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.

77. The Court sees no need for any further remedy: in particular, the Court cannot, in a judgment ruling on a dispute between the Congo and Belgium, indicate what that judgment’s implications might be for third States, and the Court cannot therefore accept the Congo’s submissions on this point.

[p. 53 D.O. Oda] 15. I find little sense in the Court’s finding in paragraph (3) of the operative part of the Judgment, which in the Court’s logic appears to be the consequence of the finding set out in paragraph (2) (Judgment, para. 78). Given that the Court concludes that the violation of international law occurred in 2000 and the Court would appear to believe that there is nothing in 2002 to prevent Belgium from issuing a new arrest warrant against Mr. Yerodia, this time as a former Foreign Minister and not the incumbent Foreign Minister, there is no practical significance in ordering Belgium to cancel the arrest warrant of April 2000. If the Court believes that this is an issue of the sovereign dignity of the Congo and that that dignity was violated in 2000, thereby causing injury at that time to the Congo, the harm done cannot be remedied by the cancellation of the arrest warrant; the only remedy would be an apology by Belgium. But I do not believe that Belgium caused any injury to the Congo because no action was ever taken against Mr. Yerodia pursuant to the warrant. Furthermore, Belgium was under no obligation to provide the Congo with any assurances that the incumbent Foreign Minister’s immunity from criminal jurisdiction would be respected under the 1993 Law, as amended in 1999, but that is not the issue here.

[pp. 89-90 J.S.O. Higgins, Kooijmans, Buergenthal] 87. In paragraph (3) of the dispositif, the Court "[f]inds 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 making this finding, the Court relies on the proposition enunciated in the Factory at Chorzów case pursuant to which "reparation must, as far as possible, wipe out all the consequences of the illegal act and re–establish the situation which would ... have existed if that act had not been committed" (P.C.I.J., Series A, No. 17, p. 47). Having previously found that the issuance and circulation of the warrant by Belgium was illegal under international law, the Court concludes that it must be withdrawn because "the warrant is still

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extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs".

88. We have been puzzled by the Court’s reliance on the Factory at Chorzów case to support its finding in paragraph (3) of the dispositif. It would seem that the Court regards its order for the cancellation of the warrant as a form of restitutio in integrum. Even in the very different circumstances which faced the Permanent Court in the Factory at Chorzów case, restitutio in the event proved impossible. Nor do we believe that restoration of the status quo ante is possible here, given that Mr. Yerodia is no longer Minister for Foreign Affairs. 89. Moreover - and this is more important - the Judgment suggests that what is at issue here is a continuing illegality, considering that a call for the withdrawal of an instrument is generally perceived as relating to the cessation of a continuing international wrong (International Law Commission, Commentary on Article 30 of the Articles of State Responsibility, A/56/10 (2001), p. 216). However, the Court’s finding in the instant case that the issuance and circulation of the warrant was illegal, a conclusion which we share, was based on the fact that these acts took place at a time when Mr. Yerodia was Minister for Foreign Affairs. As soon as he ceased to be Minister for Foreign Affairs, the illegal consequences attaching to the warrant also ceased. The mere fact that the warrant continues to identify Mr. Yerodia as Minister for Foreign Affairs changes nothing in this regard as a matter of international law, although it may well be that a misnamed arrest warrant, which is all it now is, may be deemed to be defective as a matter of Belgian domestic law; but that is not and cannot be of concern to this Court. Accordingly, we consider that the Court erred in its finding on this point.

[p. 183 D.O. Van den Wyngaert] 83. I still need to give reasons for my vote against paragraph 78 (3) of the dispositif, calling for the cancellation and the "de–circulation" of the disputed arrest warrant. Even assuming, arguendo, that the arrest warrant was illegal in the year 2000, it was no longer illegal at the moment when the Court gave Judgment in this case. Belgium’s alleged breach of an international obligation did not have a continuing character: it may have lasted as long as Mr. Yerodia was in office, but it did not continue in time

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thereafter65. For that reason, I believe the International Court of Justice cannot ask Belgium to cancel and "decirculate" an act that is not illegal today.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 452] 318. Cameroon, however, is not only asking the Court for an end to Nigeria’s administrative and military presence in Cameroonian territory but also for guarantees of non–repetition in the future. Such submissions are undoubtedly admissible (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, pp. 508 et seq., paras. 117 et seq.). 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.

319. In the circumstances of the case, the Court considers moreover that, by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will not therefore seek to ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation.

65

See Art. 14 of the 2001 ILC Draft Articles on State Responsibility, United Nations doc. A/CN.4/L.602/Rev.1, concerning the extension in time of the breach of an international obligation, which states the following: “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2. The breach of an international obligation by an act of a State having a continuing character

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Violation of International Law and Responsibility of States Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[pp. 59-61] 121. … in the present case the Court’s task is to determine what would be adequate reparation for the violations of Article 36. It should be clear from what has been observed above that the internationally wrongful acts committed by the United States were the failure of its competent authorities to inform the Mexican nationals concerned, to notify Mexican consular posts and to enable Mexico to provide consular assistance. It follows that the remedy to make good these violations should consist in an obligation on the United States to permit review and reconsideration of these nationals’ cases by the United States courts, as the Court will explain further in paragraphs 128 to 134 below, with a view to ascertaining whether in each case the violation of Article 36 committed by the competent authorities caused actual prejudice to the defendant in the process of administration of criminal justice.

122. The Court reaffirms that the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing. The question of whether the violations of Article 36, paragraph 1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the United States and is for them to determine in the process of review and reconsideration. In so doing, it is for the courts of the United States to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention.

123. It is not to be presumed, as Mexico asserts, that partial or total annulment of conviction or sentence provides the necessary and sole remedy. In this regard, Mexico cites the recent Judgment of this Court in the case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), in which the "Court extends over the entire period during which the act continues and remains not in conformity

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ordered the cancellation of an arrest warrant issued by a Belgian judicial official in violation of the international immunity of the Congo Minister for Foreign Affairs". However, the present case has clearly to be distinguished from the Arrest Warrant case. In that case, the question of the legality under international law of the act of issuing the arrest warrant against the Congolese Minister for Foreign Affairs by the Belgian judicial authorities was itself the subject–matter of the dispute. Since the Court found that act to be in violation of international law relating to immunity, the proper legal consequence was for the Court to order the cancellation of the arrest warrant in question (I.C.J. Reports 2002, p. 33). By contrast, in the present case it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them.

124. Mexico has further contended that the right to consular notification and consular communication under the Vienna Convention is a fundamental human right that constitutes part of due process in criminal proceedings and should be guaranteed in the territory of each of the Contracting Parties to the Vienna Convention; according to Mexico, this right, as such, is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. Whether or not the Vienna Convention rights are human rights is not a matter that this Court need decide. The Court would, however, observe that neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in that regard.

[pp. 62-63] 131. In stating in its Judgment in the LaGrand case that "the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence" (I.C.J. Reports 2001, p. 516, para. 128; emphasis added), the Court acknowledged that the concrete modalities for such review and reconsideration should be left primarily to the United States. It should be underlined, with the international obligation ...”

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however, that this freedom in the choice of means for such review and reconsideration is not without qualification: as the passage of the Judgment quoted above makes abundantly clear, such review and reconsideration has to be carried out "by taking account of the violation of the rights set forth in the Convention" (I.C.J. Reports 2001, p. 514, para. 125), including, in particular, the question of the legal consequences of the violation upon the criminal proceedings that have followed the violation.

132. The United States argues (1) "that the Court’s decision in LaGrand in calling for review and reconsideration called for a process to re–examine a conviction and sentence in light of a breach of Article 36"; (2) that "in calling for a process of review, the Court necessarily implied that one legitimate result of that process might be a conclusion that the conviction and sentence should stand"; and (3) "that the relief Mexico seeks in this case is flatly inconsistent with the Judgment in LaGrand: it seeks precisely the award of a substantive outcome that the LaGrand Court declined to provide".

133. However, the Court wishes to point out that the current situation in the United States criminal procedure, as explained by the Agent at the hearings, is that "If the defendant alleged at trial that a failure of consular information resulted in harm to a particular right essential to a fair trial, an appeals court can review how the lower court handled that claim of prejudice", but that "If the foreign national did not raise his Article 36 claim at trial, he may face procedural constraints [i.e., the application of the procedural default rule] on raising that particular claim in direct or collateral judicial appeals" (emphasis added). As a result, a claim based on the violation of Article 36, paragraph 1, of the Vienna Convention, however meritorious in itself, could be barred in the courts of the United States by the operation of the procedural default rule (see paragraph 111 above).

134. It is not sufficient for the United States to argue that "[w]hatever label [the Mexican defendant] places on his claim, his right ... must and will be vindicated if it is raised in some form at trial" (emphasis added), and that

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"In that way, even though a failure to label the complaint as a breach of the Vienna Convention may mean that he has technically speaking forfeited his right to raise this issue as a Vienna Convention claim, on appeal that failure would not bar him from independently asserting a claim that he was prejudiced because he lacked this critical protection needed for a fair trial." (Emphasis added.) The crucial point in this situation is that, by the operation of the procedural default rule as it is applied at present, the defendant is effectively barred from raising the issue of the violation of his rights under Article 36 of the Vienna Convention and is limited to seeking the vindication of his rights under the United States Constitution.

[pp. 65-66] 138. The Court would emphasize that the "review and reconsideration"

prescribed by it in the LaGrand case should be effective. Thus it should "tak[e] account of the violation of the rights set forth in [the] Convention" (I.C.J. Reports 2001, p. 516, para. 128 (7)) and guarantee that the violation and the possible prejudice caused by that violation will be fully examined and taken into account in the review and reconsideration process. Lastly, review and reconsideration should be both of the sentence and of the conviction.

139. Accordingly, in a situation of the violation of rights under Article 36, paragraph 1, of the Vienna Convention, the defendant raises his claim in this respect not as a case of "harm to a particular right essential to a fair trial" – a concept relevant to the enjoyment of due process rights under the United States Constitution – but as a case involving the infringement of his rights under Article 36, paragraph 1. The rights guaranteed under the Vienna Convention are treaty rights which the United States has undertaken to comply with in relation to the individual concerned, irrespective of the due process rights under United States constitutional law. In this regard, the Court would point out that what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration.

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140. As has been explained in paragraphs 128 to 134 above, the Court is of the view that, in cases where the breach of the individual rights of Mexican nationals under Article 36, paragraph 1 (b), of the Convention has resulted, in the sequence of judicial proceedings that has followed, in the 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.

141. The Court in the LaGrand case left to the United States the choice of means as to how review and reconsideration should be achieved, especially in the light of the procedural default rule. Nevertheless, the premise on which the Court proceeded in that case was that the process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned.

142. As regards the clemency procedure, the Court notes that this performs an important function in the administration of criminal justice in the United States and is "the historic remedy for preventing miscarriages of justice where judicial process has been exhausted" (Herrera v. Collins, 506 U.S. 390 (1993) at pp. 411–412). The Court accepts that executive clemency, while not judicial, is an integral part of the overall scheme for ensuring justice and fairness in the legal process within the United States criminal justice system. It must, however, point out that what is at issue in the present case is not whether executive clemency as an institution is or is not an integral part of the "existing laws and regulations of the United States", but whether the clemency process as practised within the criminal justice systems of different states in the United States can, in and of itself, qualify as an appropriate means for undertaking the effective "review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention", as the Court prescribed in the LaGrand Judgment (I.C.J. Reports 2001, p. 514, para. 125).

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143. It may be true, as the United States argues, that in a number of cases "clemency in fact results in pardons of convictions as well as commutations of sentences". In that sense and to that extent, it might be argued that the facts demonstrated by the United States testify to a degree of effectiveness of the clemency procedures as a means of relieving defendants on death row from execution. The Court notes, however, that the clemency process, as currently practised within the United States criminal justice system, does not appear to meet the requirements described in paragraph 138 above and that it is therefore not sufficient in itself to serve as an appropriate means of "review and reconsideration" as envisaged by the Court in the LaGrand case. The Court considers nevertheless that appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention, as has occurred in the case of the three Mexican nationals referred to in paragraph 114 above.

[pp. 68-69] 149. The Mexican request for guarantees of non–repetition is based on its contention that beyond these 52 cases there is a "regular and continuing" pattern of breaches by the United States of Article 36. In this respect, the Court observes that there is no evidence properly before it that would establish a general pattern. While it is a matter of concern that, even in the wake of the LaGrand Judgment, there remain a substantial number of cases of failure to carry out the obligation to furnish consular information to Mexican nationals, the Court notes that the United States has been making considerable efforts to ensure that its law enforcement authorities provide consular information to every arrested person they know or have reason to believe is a foreign national. Especially at the stage of pre–trial consular information, it is noteworthy that the United States has been making good faith efforts to implement the obligations incumbent upon it under Article 36, paragraph 1, of the Vienna Convention, through such measures as a new outreach programme launched in 1998, including the dissemination to federal, state and local authorities of the State Department booklet mentioned above in paragraph 63. The Court wishes to recall in this context what it has said in paragraph 64 about efforts in some jurisdictions to

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provide the information under Article 36, paragraph 1 (b), in parallel with the reading of the "Miranda rights".

150. The Court would further note in this regard that in the LaGrand case Germany sought, inter alia, "a straightforward assurance that the United States will not repeat its unlawful acts" (I.C.J. Reports 2001, p. 511, para. 120). With regard to this general demand for an assurance of non–repetition, the Court stated: "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 obligations 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 1 (b), must be regarded as meeting Germany’s request for a general assurance of non–repetition." (I.C.J. Reports 2001, pp. 512–513, para. 124.) The Court believes that as far as the request of Mexico for guarantees and assurances of non–repetition is concerned, what the Court stated in this passage of the LaGrand Judgment remains applicable, and therefore meets that request.

[p. 122 S.O. Sepúlveda] 63. Article 36, paragraph 2, of the Vienna Convention and the LaGrand Judgment impose an essential condition: the process of review and reconsideration must take into account the violations of the rights set forth in the Convention and the process must give full effect to the purposes for which the rights accorded in Article 36 are intended. In LaGrand, the Court also found the United States in breach of its obligations 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 ..." (LaGrand, Judgment, I.C.J. Reports 2001, p. 515, para. 128 (4)).

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64. Indeed the rights that are stipulated in Article 36, paragraph 1, are to be implemented in accordance with the laws and regulations of the receiving State. But these laws and regulations "must enable full effect to be given to the purposes for which the rights accorded under this Article are intended". In the present Judgment, it is difficult to find any clarifying statements as to how these obligations are to be implemented and what are the precise conditions that are to be applied in order to ensure that the process of review and reconsideration will be effective and meaningful. Such statements and conditions should be an integral part of the Judgment, particularly in its operative part, as an essential determination of the remedial measures that are being required by the Court.

65. The United States has indicated that, if there has been a breach of Article 36, "The whole point is simply to examine the conviction and sentence in light of the breach to see whether, in the particular circumstances of the individual case, the Article 36 breach did have some consequences – some impact that impinged upon fundamental fairness and to assess what action with respect to the conviction and sentence that may require." (CR 2003/29, p. 20, para. 3.6, Philbin.) It is also said by the United States that it is true that "if a defendant fails to raise a claim under the Vienna Convention at the proper time, he will be barred by the procedural default rule from raising the claim on appeal. Here again, however, as long as the defendant has preserved his claim relating to the underlying injury, an injury to some substantive right – such as a claim that he did not understand that he was waiving his right to counsel in an interrogation – that claim can be addressed. As a result, an examination of the impact of the Article 36 violation on the trial and its fundamental fairness – which is at the core of review and reconsideration called for by LaGrand – is fully available." (CR 2003/29, p. 25, para. 3.23, Philbin.)

[pp. 123-124 S.O. Sepúlveda] 67. There is a need to define the nature of the obligations imposed by the concept "by means of its own choosing". If the issue is not properly clarified by the Court, the two parties in the present case will not have a sufficiently solid legal guideline on the adequate measures to be undertaken in order to find the reparation sought by Mexico and in order to comply with the remedy decided by the Court to relieve the United States of its responsibility. The settlement of this issue is necessary in order to deal with the consequences that arise by virtue of an internationally wrongful act. The responsible State has

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the duty to make full reparation for the injury caused by its wrongful act. To dispel any potential misunderstandings, there is a precedent that provides a guideline and that can be invoked in order to ensure a clear definition. The Permanent Court of International Justice found that there is a need to: "ensure recognition of a situation at law, once and for all and with binding force as between the Parties so that the legal position thus established can not be again called in question in so far as the legal effects ensuing there from are concerned" (Interpretation of Judgments, Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927,P.C.I.J., Series A, No. 13, p. 20).

68. Full reparation seems unlikely to be achieved if the ambiguity of the notion of "by means of its own choosing" remains and is not strengthened with the addition of some specific measures. From the existing evidence in the pre–LaGrand and post–LaGrand periods, the United States has followed a pattern of compliance with the Vienna Convention and the Court’s Judgment that is far from satisfactory. To claim that a clemency procedure is a sufficient instrument to carry out the obligations contained in the LaGrand Judgment is to ignore the need for an adequate reparation. As the Permanent Court of International Justice found, "the essential principle is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re–establish the situation which, would, in all probability, have existed if that act had not been committed" (Factory at Chorzòw, Merits, Judgment No. 13, 1928, P.C.I.J., Series. A, No. 17, p. 47).

69. The remedial action to be provided must determine how the laws and regulations of the United States, introducing an element of effectiveness that has to be mandatory and compulsive, will "enable full effect to be given to the purposes for which the rights accorded under (Article 36) are intended". The review and reconsideration of the conviction and sentence has to take into account the breach of the rights set forth in the Convention. These rights should be considered as belonging to the category of fundamental rights that impinge on due process of law. If full effect is to be given to the purposes of these rights, and if the review and reconsideration has to take into account the nature of the violation of the rights, then the margin in the application of the principle of "by means of its own choosing" becomes far narrower. The means must be effective and the choosing has to be very selective.

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 197-198] 147. Since the Court has concluded that the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to various of Israel’s international obligations, it follows that the responsibility of that State is engaged under international law. …

149. The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory (see paragraphs 114–137 above). Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self–determination and its obligations under international humanitarian law and international human rights law. Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War (see paragraph 129 above).

150. The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory. 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).

151. Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem. Moreover, in view of the Court’s finding (see paragraph 143 above) that Israel’s violations of its international obligations stem from the

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construction of the wall and from its associated régime, cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem. All legislative and regulatory acts adopted with a view to its construction, and to the establishment of its associated régime, must forthwith be repealed or rendered ineffective, except in so far as such acts, by providing for compensation or other forms of reparation for the Palestinian population, may continue to be relevant for compliance by Israel with the obligations referred to in paragraph 153 below.

152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned. The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms: "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 Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.)

153. Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such

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restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction.

[pp. 199-200] 155. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. 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, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self–determination, and certain of its obligations under international humanitarian law.

156. 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). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88), "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 ..."

157. 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

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fundamental to the respect of the human person and ‘elementary 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 1996 (I), p. 257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character.

158. The Court would also emphasize that Article 1 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 under an obligation to ensure that the requirements of the instruments in question are complied with.

159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations 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. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

160. Finally, the Court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is

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required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.

[pp. 231-232 S.O. Kooijmans] 39. Although the Court beyond any doubt is entitled to do so, the

request itself does not necessitate (not even by implication) the determination of the legal consequences for other States, even if a great number of participants urged the Court to do so (para. 146). In this respect the situation is completely different from that in the Namibia case where the question was exclusively focussed on the legal consequences for States, and logically so since the subject-matter of the request was a decision by the Security Council. In the present case there must therefore be a special reason for determining the legal consequences for other States since the clear analogy in wording with the request in the Namibia case is insufficient.

40. That reason as indicated in paragraphs 155 to 158 of the Opinion is that the obligations violated by Israel include certain obligations erga omnes. I must admit that I have considerable difficulty in understanding why a violation of an obligation erga omnes by one State should necessarily lead to an obligation for third States. The nearest I can come to such an explanation is the text of Article 41 of the International Law Commission’s Articles on State Responsibility. That Article reads: "1.

States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40. (Article 40 deals with serious breaches of obligations arising under a peremptory norm of general international law.)

2.

No State shall recognise as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation."

Paragraph 3 of Article 41 is a saving clause and of no relevance for the present case.

41. I will not deal with the tricky question whether obligations erga omnes can be equated with obligations arising under a peremptory norm of general international law. In this respect I refer to the useful commentary of the ILC under the heading of Chapter III of its Articles. For argument’s sake I start from the assumption that the consequences of the violation of such obligations are identical.

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42. Paragraph 1 of Article 41 explicitly refers to a duty to co-operate. As paragraph 3 of the commentary states "What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches." And paragraph 2 refers to "co-operation ... in the framework of a competent international organization, in particular the United Nations". Article 41, paragraph 1, therefore does not refer to individual obligations of third States as a result of a serious breach. What is said there is encompassed in the Court’s finding in operative subparagraph (3) (E) and not in subparagraph (3) (D).

43. Article 41, paragraph 2, however, explicitly mentions the duty not to recognize as lawful a situation created by a serious breach just as operative subparagraph (3) (D) does. In its commentary the ILC refers to unlawful situations which virtually without exception take the form of a legal claim, usually to territory. It gives as examples "an attempted acquisition of sovereignty over territory through denial of the right of self-determination", the annexation of Manchuria by Japan and of Kuwait by Iraq, South-Africa’s claim to Namibia, the Unilateral Declaration of Independence in Rhodesia and the creation of Bantustans in South Africa. In other words, all examples mentioned refer to situations arising from formal or quasi-formal promulgations intended to have an erga omnes effect. I have no problem with accepting a duty of non-recognition in such cases.

44. I have great difficulty, however, in understanding what the duty not to recognize an illegal fact

involves.

What

are

the

individual

addressees

of

this

part

of

operative

subparagraph (3) (D) supposed to do in order to comply with this obligation? That question is even more cogent considering that 144 States unequivocally have condemned the construction of the wall as unlawful (res. ES-10/13), whereas those States which abstained or voted against (with the exception of Israel) did not do so because they considered the construction of the wall as legal. The duty not to recognize amounts, therefore, in my view to an obligation without real substance.

45. That argument does not apply to the second obligation mentioned in Article 41, paragraph 2, namely the obligation not to render aid or assistance in maintaining the situation created by the serious breach. I therefore fully support that part of operative subparagraph (3) (D). Moreover, I would have been in favour of adding in the reasoning or

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even in the operative part a sentence reminding States of the importance of rendering humanitarian assistance to the victims of the construction of the wall. (The Court included a similar sentence, be it with a different scope, in its Opinion in the Namibia case, I.C.J. Reports 1971, p. 56, para. 125.)

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 254-255] 253. The DRC claims that, as the first legal consequence of the establishment of Uganda’s international responsibility, the latter is under an obligation to cease forthwith all continuing internationally wrongful acts. According to the DRC’s Memorial, this obligation of cessation covers, in particular, the occupation of Congolese territory, the support for irregular forces operating in the DRC, the unlawful detention of Congolese nationals and the exploitation of Congolese wealth and natural resources. In its Reply the DRC refers to the occupation of Congolese territory, the support for irregular forces operating in the DRC and the exploitation of Congolese wealth and natural resources. In its final submission presented at the end of the oral proceedings, the DRC, in view of the withdrawal of Ugandan troops from the territory of the DRC, asks that Uganda cease from providing support for irregular forces operating in the DRC and cease from exploiting Congolese wealth and natural resources.

254. In answer to the question by Judge Vereshchetin (see paragraph 22 above), the DRC explained that, while its claims relating to the occupation of the territory of the DRC covered the period from 6 August 1998 to 2 June 2003, other claims including those of new military actions, new acts of support to irregular forces, as well as continuing illegal exploitation of natural resources, covered the period from 2 August 1998 until the end of the oral proceedings. The Court notes, however, that it has not been presented with evidence to support allegations with regard to the period after 2 June 2003.

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In particular, the Court observes that there is no evidence in the case file which can corroborate the DRC’s allegation that at present Uganda supports irregular forces operating in the DRC and continues to be involved in the exploitation of Congolese natural resources. Thus, the Court does not find it established that Uganda, following the withdrawal of its troops from the territory of the DRC in June 2003, continues to commit the internationally wrongful acts specified by the DRC. The Court thus concludes that the DRC’s request that Uganda be called upon to cease the acts referred to in its submission 4 (b) cannot be upheld.

[pp. 255-256] 255. The DRC further requests the Court to rule that Uganda provide specific guarantees and assurances of non-repetition of the wrongful acts complained of. The DRC claims that this request is justified by "the threats which accompanied the troop withdrawal in May 2003". In this regard it alleges that in April 2003 Mr. James Wapakhabulo, the then Minister for Foreign Affairs of Uganda, made a statement "according to which ‘the withdrawal of our troops from the Democratic Republic of the Congo does not mean that we will not return there to defend our security!’". As to the form of the guarantees and assurances of non-repetition, the DRC, referring to existing international practice, requests from Uganda "a solemn declaration that it will in future refrain from pursuing a policy that violates the sovereignty of the Democratic Republic of the Congo and the rights of its population"; in addition, it "demands that specific instructions to that effect be given by the Ugandan authorities to their agents".

256. In this respect the Court has taken judicial notice of the Tripartite Agreement on Regional Security in the Great Lakes, signed on 26 October 2004 by the DRC, Rwanda and Uganda. In the Preamble of this Agreement the Parties emphasize "the need to ensure that the principles of good neighbourliness, respect for the sovereignty, territorial integrity, and non-interference in the internal affairs of sovereign states are respected, particularly in the region". Article I indicates that one of the objectives of the Agreement is to "[e]nsure respect for the sovereignty and territorial integrity of the countries in the region and cessation of any support for armed groups or militias, in accordance with relevant resolutions of

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the United Nations and other rules of international law". Finally, in paragraph 1 of Article II, "[t]he Parties reiterate their commitment to fulfil their obligations and undertakings under existing agreements and the relevant resolutions of the United Nations Security Council". The Parties further agreed to establish a Tripartite Joint Commission, which, inter alia, "shall implement the terms of this Agreement and ensure that the objectives of this Agreement are being met".

257. 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. In the Court’s view, the commitments assumed by Uganda under the Tripartite Agreement must be regarded as meeting the DRC’s request for specific guarantees and assurances of non-repetition. The Court expects and demands that the Parties will respect and adhere to their obligations under that Agreement and under general international law.

[pp. 257] 259. 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). Upon examination of the case file, given the character of the internationally wrongful acts for which Uganda has been found responsible (illegal use of force, violation of sovereignty and territorial integrity, military intervention, occupation of Ituri, violations of international human rights law and of international humanitarian law, looting, plunder and exploitation of the DRC’s natural resources), the Court considers that those acts resulted in injury to the DRC and to persons on its territory. Having satisfied itself that this injury was caused to the DRC

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by Uganda, the Court finds that Uganda has an obligation to make reparation accordingly.

260. The Court further considers appropriate the request of the DRC for the nature, form and amount of the reparation due to it to be determined by the Court, failing agreement between the Parties, in a subsequent phase of the proceedings. The DRC would thus be given the opportunity to demonstrate and prove the exact injury that was suffered as a result of specific actions of Uganda constituting internationally wrongful acts for which it is responsible. 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).

261. The Court also notes that the DRC has stated its intention to seek initially to resolve the issue of reparation by way of direct negotiations with Uganda and to submit the question to the Court only "failing agreement thereon between the parties". 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.

[pp. 353 Decl. Tomka] 7. The Court has found that Uganda has breached its obligations under international humanitarian law (paragraph 3 of the dispositif). When considering the allegation of breaches of international humanitarian law obligations by the Uganda Peoples’ Defence Forces (UPDF), the Court, being convinced that they were committed, qualifies these breaches as grave (see paragraphs 207 and 208).

8. The Court has also determined the legal consequences of Uganda’s breaches of its international legal obligations, including the obligations under international humanitarian law (see the dispositif, paragraph 6, and also paragraphs 251-261). In doing that, the Court took as a point of departure the fourth final submission of the DRC (see paragraphs 25 and 252) and

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determined these consequences under the general rules of international law on responsibility of States for internationally wrongful acts.

9. Nevertheless, since grave breaches of international humanitarian law were committed, there is another legal consequence which has not been raised by the DRC and on which the Court remains silent. That consequence is provided for in international humanitarian law. There should be no doubt that Uganda, as party to both the Geneva Conventions of 1949 and the Additional Protocol I of 1977 remains under the obligation to bring those persons who have committed these grave breaches before its own courts (Article 146 of the Fourth Geneva Convention, and Article 85 of the Protocol I Additional to the Geneva Conventions).

[pp. 359 Decl. Verhoeven] 5. … However, ever since the Charter of the United Nations clearly banned the use of force, it is difficult to see how a State having used armed force otherwise than in self-defence can elude its obligation to make reparation for the injury it has caused. It must be stressed that this injury comprises all the damage deriving from the violation of the prohibition on the use of force, regardless of whether it stems from acts or practices which in themselves comply with the rules of the law of war. It may be that breach of these rules augments the responsibility deriving from the violation of the jus ad bellum; be that as it may, compliance with the jus in bello is never sufficient to release a party from the obligation to make good all consequences of its violation of the jus ad bellum. Where occupation is unlawful because it results from the use of force otherwise than in self-defence, the occupying State bears an obligation, for example, to make reparation for all ensuing damage, even if it has acted in accordance with the Fourth Geneva Convention (1949) and with the Regulations annexed to the Fourth Hague Convention (1907). Contrary to the suggestion by the Respondent, an occupant enjoys no right or prerogative under those Regulations by which it can avoid responsibility in respect of an occupation established in violation of the jus ad bellum. This is one of the basic consequences of the contemporary prohibition on the use of force. It does not follow that a State legally using force may breach the jus in bello; the only point is that a State unlawfully using force cannot plead compliance with the jus in bello to avoid having to make reparation for the injury resulting from its military actions.

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II. Substantive International Law – Second Part 1. TERRITORY OF STATES 1.1. Acquisition and Loss

1.1.1. General Questions

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[p. 99-100] 196. Bahrain claims that Qit'at Jaradah comes under Bahraini sovereignty, since it has displayed its authority over it in various ways, and that this was recognized by the British Government in 1947. In this respect it has referred to a number of activities, including the erection of a beacon, the ordering of the drilling of an artesian well, the granting of an oil concession, and the licensing of fish traps. Qatar contends that Qit'at Jaradah, being a low–tide elevation, cannot be appropriated, and that, since it is situated in the part of the territorial sea which belongs to Qatar, Qatar has sovereign rights over it.

197. The Court first notes that Qit'at Jaradah is a very small island situated within the 12–mile limit of both States. According to the report of the expert commissioned by Bahrain, at high tide its length and breadth are about 12 by 4 metres, whereas at low tide they are 600 and 75 metres. At high tide, its altitude is approximately 0.4 metres. Certain types of activities invoked by Bahrain such as the drilling of artesian wells would, taken by themselves, be considered controversial as acts performed à titre de souverain. The construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of Qit'at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain's claim that it has sovereignty over it.

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198. 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.)

[p. 159 J.D.O. Bedjaoui, Ranjeva and Koroma] 38. In the present case, the indivisibility of the consent has not been established; it is simply presumed. In political terms, the nature of the relationship between the protecting Power and the protected State did not permit the use of any language other than the deferential terms in which the local rulers expressed themselves; thus to interpret that language as evidence of consent to the renunciation of territorial jurisdiction is in reality to give the opposite sense to the natural meaning of the words and conduct in 1939. In legal terms, when the Judgment invokes against Qatar its consent to the substance of the 1939 decision – a consent that was in reality hypothetical – , it reproaches Qatar with its failure to abide by a decision with which it had already been threatened in veiled terms since 1937. Independently of the fraudulent nature of the manoeuvres of the British representatives, the question is whether Qatar was legally bound to abide by the decision. The answer must be a negative one. In the matter of territory, consent to a renunciation of sovereignty cannot be presumed; the renunciation must be expressed and established in unequivocal terms. This is an absolute rule in international law. Agreement to a power on the part of the United Kingdom to dispose of sovereignty over the Hawar Islands has not been established. Consent to the proceedings, even supposing that it was validly given – quod non – did not signify automatic consent to the final decision. There is nothing in the evidence submitted to the Court, and in particular in the letters of Qatar cited in the Judgment, to show that Qatar gave its consent to be legally bound by the future decision.

[p. 168-169 J.D.O. Bedjaoui, Ranjeva and Koroma] 69. International jurisprudential practice sets great store by the conduct of States. A State's silence, its consent, its acquiescence, any waiver of its rights, any protest, any effect of estoppel upon its actions, all represent important elements in the creation or extinction of a title over a territory. In the present case, Qatar has always protested, and never ceased to do so, on the one hand against

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the British decision of 1939 and on the other against the activities of Bahrain in the Hawar Islands. This consistent course of conduct by Qatar is such as to prevent any title arising in favour of Bahrain.

70. Qatar's refusal to acquiesce in Bahrain's potential effectivités over the Hawar Islands is manifest. It cannot be disputed that since 1938 Qatar has never ceased to protest against the "illegal occupation" of the Hawars. In 1939, when the British decision was notified to him, the Ruler of Qatar protested. Given the unequal relationship between his country and the United Kingdom, and looking beyond the language of courtesy and deference, Qatar's position could not be interpreted otherwise than as a refusal to acquiesce and as a request for a re– examination of the decision, all of which prevented Bahrain's effectivités – assuming that there was any substance to them – from producing any effects in law.

71. Since then, a number of clear manifestations of lack of acquiescence can be noted. They have taken various forms, such as proposals for mediation, arbitration or judicial settlement.

[p. 169-170 J.D.O. Bedjaoui, Ranjeva and Koroma] 75. In sum, Qatar's protests, in all their forms, with regard to all kinds of actions undertaken by Bahrain in the Hawar Islands, are both numerous, varied and persistent. They show that Qatar did not allow Bahraini effectivités to be acquired by remaining silent. Moreover, ever since the case was brought before the Court, Qatar has consistently protested against the non–observance of the status quo by Bahrain. Between the filing of its Memorial and that of its Counter–Memorial, that is to say over a period of a mere two years (1996–1997), we note no less than 13 protests in the form of note verbales concerning: (i)

Bahraini legislation whenever it affects the Hawar Islands;

(ii)

violations of airspace in those islands;

(iii)

advertisements published by Bahrain in the press relating to its activities in the islands and its claims to sovereignty over the group66.

[p. 172-173 J.D.O. Bedjaoui, Ranjeva and Koroma] 87. What first strikes the man in the street when glancing at a map of the region is the indisputable fact that, physically, the Hawar "Islands" belong to the same continental mass as Qatar. When the tide goes out each day, 66

See Counter–Memorial of Qatar, Appendices 1 and 2, Vol. 5.

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Qatar's whole land mass resembles a hand, whose thumb is the Hawars. As shown by British Admiralty Chart No. 2886 of 1994, entitled "Jazireh–Ye Lavan and Jazirat Das to Ra's Tannurah"67, there is no break between the thumb and the rest of the hand. The Hawar "Islands" are not actually islands but an indivisible part of the land mass of Qatar, cut off by the sea when the tide comes in and joined to the land again when the tide goes out. This elementary lesson in macrogeography seems to have escaped the Court. In reality, and with a certainty beyond the power of even the most rigorous Thomist to dispute, the Hawar Islands are simply a peninsula which, in geographical terms, forms an integral part of the rest of the mainland.

88. It would even be superfluous in this connection, not to say inappropriate, to invoke the principle based on the strong legal presumption that islands situated in a coastal State's territorial sea belong to that State, because the Hawars cannot be said to be "islands" in the true sense, but rather a peninsula – firmly attached to the mainland – emerging daily when the tide goes out.

89. No legal reasoning, however ingenious – and certainly no reasoning in this Judgment – can overcome this inescapable fact. Long before the Court, macrogeography determined, and for all time, that the peninsula of the Hawars belongs to the Qatari mainland, of which it is an integral part. Such a decree of nature cannot be abrogated. The enormous map file submitted to the Court by Qatar, containing maps from a wide variety of sources and eras, confirms this geomorphological reality and clearly shows, as will be seen below, that the Hawars were and are recognized to belong to Qatar.

[p. 189-190 J.D.O. Bedjaoui, Ranjeva and Koroma] 137. The Court's Judgment has almost as little to say on the issues of proximity, contiguity and territorial integrity as it does on the question of historical title. There exists, however, a strong legal presumption under international law that islands lying within the territorial waters of a State belong to that State. "There is a strong presumption that islands within the twelve–mile coastal belt will belong to the coastal State, unless there is a fully–established case to the contrary (as,

67

The chart bears the imprint: "Published at Taunton 29th April 1994 under the Superintendence of Rear Admiral N.R. Essenhigh, Hydrographer of the Navy".

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Territory of States for example, in the case of the Channel Islands). But there is no like presumption outside the coastal belt, where the ownership of the islands is plainly at issue."

So states the Award of 9 October 1998 made by the Arbitration Tribunal in the Eritrea/Yemen case under the presidency of Sir Robert Jennings (para. 474). This Award applied the principle of international law that an island situated in the territorial waters of a State is deemed to form part of the territory of that State.

138. This is a "strong presumption" in law – one which admittedly is not irrebuttable but which cannot be overcome except: – in terms of procedure, by reversing the burden of proof; and – substantively, by invoking a superior title.

139. The presumption concerns islands situated within territorial waters. Today the breadth of the territorial sea is 12 miles. The Eritrea/Yemen Award of course took this into account. If we go by this figure, all the Hawar Islands belong to Qatar. And if we go by the 3–mile breadth which applied at the time of the Anglo–Qatari Treaty of 3 November 1916, the majority of the islands and islets of the Hawars lie totally or partially within Qatar's territorial sea. The claim made by Bahrain on 29 May 1938 concerned 17 islands and islets, 11 of which are within the 3–mile limit.

140. Bahrain denied the existence of this principle in positive law and cited no fewer than 11 instances worldwide in which the principle has not prevailed. But Bahrain's argument is irrelevant, since the situations mentioned all derive from special circumstances and were created by treaty. Anything – almost anything – can be done by treaty, since the contractual freedom of sovereign States is a fundamental principle. The Eritrea/Yemen Award took good care to say "unless there is a fully–established case to the contrary".

141. What is more, proximity alone does not constitute a title. It supplements or combines with other elements to constitute a title. This is clearly the case here. It will also be noted that the concept of proximity is not as alien to the law as might at first be thought. The notion of "distance" is clearly present in the law of the sea. That of "proximity" derives from it. After all, the title of a coastal State to its territorial sea stems exclusively from

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proximity. What is more, an "archipelagic" State, which is what Bahrain claims to be, is nothing more than a collection of islands having in common "proximity" alone.

142. In the present case we are simply recalling the strong presumption that an island belongs to a coastal State if it is situated within the limits of its territorial sea. This presumption exists, and calling it the "principle of proximity" or by any other name cannot detract from its existence merely because the principle comes cloaked in a new guise, such as "contiguity", or because a section of the doctrine – in truth, a rather small one – on occasion challenges it.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 171] 87. … 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.

[pp. 184] 121. Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a "fait accompli" on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.

260

Territory of States 1.1.2. Legal or Historic Title

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Application by the Philippines for Permission to Intervene Judgment of 23 October 2001 [p. 652 S.O. Franck] 2. ... I wish to explicate a legal basis for the Court’s decision which, while consistent with it, has not been advanced by the Court, perhaps because it was insufficiently advanced by the Parties, although discussed in passing by Malaysia (CR 2001/2, p. 56, para. 10 (Lauterpacht)) and the Philippines (CR 2001/3, p. 23, para. 14 (Magallona)). I shall endeavour to demonstrate why that legal basis is of some importance and why the Court need not have been deterred from making this clear. The point of law is quite simple, but ultimately basic to the international rule of law. It is this: historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot except in the most extraordinary circumstances - prevail in law over the rights of non–self– governing people to claim independence and establish their sovereignty through the exercise of bona fide self–determination.

[pp. 655-658 S.O. Franck] 9. Under traditional international law, the right to territory was vested exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance with the laws relevant to the recognition, exercise and transfer of sovereign domain. In order to judicially determine a claim to territorial title erga omnes, it was necessary to engage with the forms of international conveyancing, tracing historic title through to a critical date or dates to determine which State exercised territorial sovereignty at that point in time. Under modern international law, however, the enquiry must necessarily be broader, particularly in the context of decolonization. In particular, the infusion of the concept of the rights of a "people" into this traditional legal scheme, notably the right of peoples to self–determination, fundamentally alters the significance of historic title to the determination of sovereign title.

10. Previous judgments of this Court (in particular, its Advisory Opinion of 26 January 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia

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(South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, pp. 31–32, paras. 52–53 and its Advisory Opinion of 16 October 1975 in Western Sahara, I.C.J. Reports 1975, pp. 31–33, paras. 54–59) contribute to and recognize the development of the right of non–self–governing peoples to self–determination which "requires a free and genuine expression of the will of the peoples concerned" (Western Sahara, ibid., p. 32, para. 55). The Court recognized in the Namibia case that, "the subsequent development of 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 of them" (I.C.J. Reports 1971, p. 31, para. 52). In the case concerning East Timor (Portugal v. Australia), the Court recognized the principle of self–determination to be "one of the essential principles of contemporary international law" (I.C.J. Reports 1995, p. 102, para. 29).

11. The decisions of this Court confirm the prime importance of this principle of self– determination of peoples. The firm basis for the principle is also anchored in universal treaty law, State practice and opinio juris. Article 1, paragraph 2, of the United Nations Charter indicates that one of the purposes of the United Nations is "[t]o develop friendly relations among nations based on respect for the principle of equal rights and self–determination of peoples". The principle also finds express and implied reflection in other provisions of the Charter, namely Article 55, Article 73 and Article 76 (b). Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights provides that "[a]ll peoples have the right of self– determination", and emphasizes in Article 1 (3), that "States Parties to the present Covenant ... shall respect [the] right [of self–determination], in conformity with the provisions of the Charter of the United Nations".

12. This treaty law has been affirmed, developed and given more tangible form by numerous resolutions of the General Assembly, which have consistently received broad support. General Assembly resolution 637 (VII), adopted on 16 December 1952, was an early recognition that "every Member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self–determination", a right which was stated to be a "prerequisite to the full enjoyment of all fundamental human rights". The "Declaration on the Granting of Independence to Colonial Countries and Peoples", General Assembly resolution 1514 (XV), adopted without dissent on 14 December 1960, is regarded as fundamental to the process of

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decolonization. It is applicable to all "territories which have not yet attained independence" and establishes that "[a]ll peoples have the right to self–determination" while insisting that "[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations". In General Assembly resolution 1541 (XV), adopted with only two dissents on 15 December 1960, the General Assembly contemplated more than one method of self– determination for non–self–governing territories, including "[i]ntegration with an independent State". General Assembly resolution 2131 (XX), "Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty", adopted by 109 countries without dissent on 21 December 1965, declared that, "[a]ll States shall respect the right of self–determination and independence of peoples and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms". The principle of self–determination was further included among the "basic principles of international law" set out in the "Declaration on Principles of International Law concerning Friendly Relations and Co–operation among States in accordance with the Charter of the United Nations", adopted by consensus as the Annex to resolution 2625 (XXV) on 24 October 1970. According to this document, "all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter" (emphasis added).

13. The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary–General of the United Nations was entrusted under the Manila Accord of 31 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and: "[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives." (Quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, 18th Session, UN Doc. No. A/PV.1219.)

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14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 (e) Non–Self–Governing Territory (Note by the Secretary–General, Political and Constitutional Information on Asian Territories under United Kingdom Administration, UN Doc. No. A/5402/Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization jurisdiction (see Yearbook of the United Nations, 1964, pp. 411-435, which omits North Borneo from the Committee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of self–determination.

15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self–determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self-determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.

16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self–determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the people of North Borneo in the exercise of their legal right to self–determination. The Court cannot be a witting party to that.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 352] 65. The Court will now examine Nigeria’s argument based on historical consolidation of title.

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The Court observes in this respect that in the Fisheries case (United Kingdom v. Norway) (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. Nigeria contends that the notion of historical consolidation has been developed by academic writers, and relies on that theory, associating it with the maxim quieta non movere. 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. 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. Moreover, the facts and circumstances put forward by Nigeria with respect to the Lake Chad villages concern a period of some 20 years, which is in any event far too short, even according to the theory relied on by it. Nigeria’s arguments on this point cannot therefore be upheld.

[pp. 410-412] 214. ... In 1970 Cameroon and Nigeria decided to carry out a total delimitation and demarcation of their boundaries, starting from the sea. Under the terms of Article 2 of the Yaoundé I Declaration of 14 August 1970 and the agreement reached in the Yaoundé II Declaration of 4 April 1971 with its signed appended chart, it was agreed to fix the boundary in the Akwayafe estuary from point 1 to point 12 (see paragraph 38 above). Then, by declaration signed at Maroua on 1 June 1975, the two Heads of State "agreed to extend the delineation of the maritime boundary between the countries from Point 12 to Point G on the Admiralty Chart No. 3433 annexed to this

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Declaration" and precisely defined the boundary by reference to maritime co–ordinates (see paragraph 38 above). The Court finds that it is clear from each one of these elements that the Parties took it as a given that Bakassi belonged to Cameroon. Nigeria, drawing on the full weight of its experts as well as its most senior political figures, understood Bakassi to be under Cameroon sovereignty. This remains the case quite regardless of the need to recalculate the co–ordinates of point B through an Exchange of Letters of 12 June and 17 July 1975 between the Heads of State concerned; and quite regardless whether the Maroua Declaration constituted an international agreement by which Nigeria was bound. The Court addresses these aspects at paragraphs 262 to 268 below. Accordingly, the Court finds that at that time Nigeria accepted that it was bound by Articles XVIII to XXII of the Anglo–German Agreement of 11 March 1913, and that it recognized Cameroonian sovereignty over the Bakassi Peninsula.

215. In the view of the Court, this common understanding of the Parties is also reflected by the geographic pattern of the oil concessions granted by the two Parties up to 1991. While no precise offshore delimitation lines were adhered to in the grants made, their underlying assumption was that Cameroon had the right to the resources in those waters that depended on the land boundary in Bakassi as fixed in the Anglo– German Agreement of 11 March 1913. 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.

216. In assessing whether Nigeria, as an independent State, acknowledged the applicability of the provisions of the Anglo–German Agreement of 11 March 1913 relating to Bakassi, the Court has also taken account of certain formal requests up until the 1980s submitted by the Nigerian Embassy in Yaoundé, or by the Nigerian consular

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authorities, before going to visit their nationals residing in Bakassi. This Nigerian acknowledgment of Cameroon sovereignty is in no way dependent upon proof that any particular official visit did in fact take place.

217. For all of these reasons the Court finds that the Anglo–German Agreement of 11 March 1913 was valid and applicable in its entirety. Accordingly, the Court has no need to address the arguments advanced by Cameroon and Nigeria as to the severability of treaty provisions, whether generally or as regards boundary treaties.

[p. 413-414] 220. The Court first recalls its finding above regarding the claim to an ancient title to Bakassi derived from the Kings and Chiefs of Old Calabar. It follows therefrom that at the time of Nigeria’s accession to independence there existed no Nigerian title capable of being confirmed subsequently by "long occupation" (see paragraph 212 above). On the contrary, on the date of its independence Cameroon succeeded to title over Bakassi as established by the Anglo–German Agreement of 11 March 1913 (see paragraphs 213–214 above). Historical consolidation was also invoked in connection with the first of Nigeria’s further claimed bases of title, namely peaceful possession in the absence of protest. The Court notes that it has already addressed these aspects of the theory of historical consolidation in paragraphs 62 to 70 above. The Court thus finds that invocation of historical consolidation cannot in any event vest title to Bakassi in Nigeria, where its "occupation" of the peninsula is adverse to Cameroon’s prior treaty title and where, moreover, the possession has been for a limited period.

[p. 586-589 D.O. Ajibola] 146. The issue of title looms very large in this case as both Parties claim one form of title or the other. Reference has been made to it with different descriptions, i.e., legal title, original title, conventional title and historical title. In its presentation Cameroon claims sovereignty to the Bakassi Peninsula, alleging that its right to sovereignty with regard to the territory is its legal title derived, inter alia, from the Agreement of 11 March 1913 between Great Britain and Germany. On its part, Nigeria claims to hold original or historical title, partly evidenced by the Treaty of 10 September 1884 between the Kings and

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Chiefs of Old Calabar and Great Britain. The question here is that of the meaning of title in the context of this case and in international law. Cameroon tries to persuade the Court to hold that the only meaning attributable to the word is a conventional or legal title. The Court agrees with this. It appears to me that "title" bears a broader meaning than that and ought to be interpreted not necessarily or solely as documentary title but as the rights that a party holds in relation to a territory. This, to my mind, includes not only legal title but also possessory title.

...

149. In effect, it appears that the term "title" or even "legal title" should be given its broad and liberal meaning to include not only the strict documentary evidence, but also other evidence that could establish the legal rights of the Parties.

150. The Court, whilst giving Judgment in favour of Cameroon, based on its so–called legal title, dismisses the claim of Nigeria based on effectivités as effectivités contra legem, despite the long occupation and administration of the territory by Nigeria. In so deciding, the Court bases its decision on its jurisprudence in the Frontier Dispute (Burkina Faso/Republic of Mali) case. ...

153. There is no doubt that according to paragraph 63 preferences ought to be given to the "holder of the title". But with due deference, this does not mean that the holder of the title is absolutely entitled to sovereignty over the territory. All it indicates is that it should have preference, but this preference is not absolute. It leaves an equally legal right which the Court must grant to the party with effectivités. As explained in the final part of the above paragraph, "[i]n the event that the effectivité does not co–exist with any legal title, it must invariably be taken into consideration". That is the consideration that the Court must invariably give to effectivités in this regard. On a careful examination of the situation in the Bakassi Peninsula, the Court cannot rely on this authority to decide that the claim of a title–holder is exclusive and absolute. The Court must take cognizance of the fact that Nigerians have settled in Bakassi from time immemorial, that they owe allegiance to their Kings and Chiefs, and that they have settled administration and other civil activities as Nigerians there.

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[p. 476 D.O. Koroma] 8. … I am also unable to accept that the categories of legal title to territory are restricted to what the Court described as the "established" modes, in its response to the contention that the principle of historical consolidation was a valid basis for territorial title, that is to say that proven long use, coupled with a complex of interests and relations, as in the present case, can have the effect of attaching a territory to a given State. In my opinion, founded on the jurisprudence of the Court (Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 139; Minquiers and Ecrehos (United Kingdom/France), Judgment, I.C.J. Reports 1953, p. 57; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 565, para. 345), historical consolidation, if supported by the requisite evidence, can be a sound and valid means of establishing territorial title in international law. When, therefore, such evidence is presented to the Court, as in this case, it does not seem legally justified to reject such evidence because it is categorized under a particular rubric. Rather than being preoccupied with the "label" of the evidence, the Court’s essential judicial function should be to assess and interpret the evidence before it objectively, so as to determine whether or not such evidence is sufficient to establish title to the territory in question.

[pp. 484-486 D.O. Koroma] 26. In my view, the categories of legal title to territory cannot be regarded as finite. The jurisprudence of the Court has never spoken of "modes of acquisition", which is a creation of doctrine. Just as the Court has recognized prescriptive rights to territory, so there is a basis for historical consolidation as a means of establishing a territorial claim. Nor can the concept of historical consolidation as a mode of territorial title be regarded as "over–generalized" and alien to jurisprudence. Both municipal and international law including the Court’s jurisprudence, recognize a situation of continuous and peaceful display of authority – proven – usage combined with a complex of interests in and relations to a territory, which, when generally known and accepted, expressly or tacitly, could constitute title based on historical consolidation. The "important variables" of the so–called established modes of acquisition, which the Court did not define, are not absent in historical consolidation. If anything, they are even more prevalent − the complex of interests and relations being continuous and extending over many years plus acquiescence. Historical consolidation also caters for a situation where there has been a clear loss or absence of title through abandonment or inactivity on the one side, and an effective exercise of jurisdiction and control, continuously

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maintained, on the other (see Fitzmaurice, "General Principles of International Law", Receuil des Cours, 1957, II, p. 148).

27. Failure of a State to react to a claim may, under certain conditions, not amount to acquiescence, though in most cases it will. In the Minquiers and Ecrehos case, France pleaded that it was impossible to keep under surveillance the activities of the United Kingdom with respect to the islets. Responding to this argument, Judge Carneiro replied that France was obliged to keep the disputed territory under surveillance and failure to exercise such surveillance and ignorance of what was going on on the islets indicate that France was not exercising sovereignty in the area (Judgment, I.C.J. Reports 1953, p. 106). In the Anglo– Norwegian Fisheries case, the Court held that Great Britain, being a maritime Power traditionally concerned with the law of the sea, with an interest in the fisheries of the North Sea could not have been ignorant of Norwegian practice and could not rely on an absence of protest, relevant in proving historic title (Judgment, I.C.J. Reports 1951, p. 139). Thus a passive course of conduct involving failure to protest may be taken into account in determining acquiescence in a territorial dispute. If the circumstances are such that some reaction within a reasonable period is called for on the part of a State, the latter, if it fails to react, must be said to have acquiesced. "Qui tacet consentire videtur si loqui debuisset ac potuisset."

28. Regarding the length of time required to prove title on the basis of historical consolidation, every material situation calls for its own solution, based on the balancing of competing claims and depending on the area. Title may be proved even without reference to the period of time during which sovereignty had coalesced over the territory in dispute. In paragraph 65 of the Judgment, the Court stated that "the facts and circumstances put forward by Nigeria ... concern a period of some 20 years, which is in any event far too short, even according to the theory relied on by it". While proven long usage is an important element to consolidate title on a historical basis, however, and depending on the area, that period may sometimes be shorter. What is required is an assessment of all the elements to determine whether the facts presented establish the claim.

29. With reference to the matter at hand, the evidence of original title on which Nigeria bases its claim to Bakassi can be found in the administration of Bakassi on the part of the Kings and

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Chiefs of Old Calabar before and after the conclusion of the 1884 Treaty with Great Britain, the exercising of authority by traditional rulers, the Efik and Efiat toponymy of the territory, its ethnic affiliation with Nigeria but not with Cameroon, the long–established settlement of Nigerians in the territory and the manifestation of sovereign acts, such as tax collection, census–taking, the provision of education and public health services. The acquiescence of Cameroon in this long–established Nigerian administration of the territory, the permanent population, the significant affiliations of a Nigerian character, do substantiate a claim based on historical consolidation and which in turn militates in favour of territorial title and stability. The claim to territorial title to Bakassi and to the Nigerian settlements around Lade Chad was thus adequately substantiated and there is no legal justification to cast doubt on its legal basis and integrity.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002

[pp. 674-678] 108. The Court notes at the outset that the islands in dispute are not mentioned by name in any of the international legal instruments presented by Malaysia to prove the alleged consecutive transfers of title. The Court further notes that the two islands were not included in the grant by which the Sultan of Sulu ceded all his rights and powers over his possessions in Borneo, including the islands within a limit of 3 marine leagues, to Alfred Dent and Baron von Overbeck on 22 January 1878, a fact not contested by the Parties. Finally, the Court observes that, while the Parties both maintain that the islands of 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.

109. The Court will first deal with the question whether Ligitan and Sipadan were part of the possessions of the Sultan of Sulu. It is not contested by the Parties that geographically these islands do not belong to the Sulu Archipelago proper. In all relevant documents, however, the Sultanate is invariably described as "the Archipelago

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of Sulu and the dependencies thereof" or "the Island of Sooloo with all its dependencies". In a number of these documents its territorial extent is rather vaguely defined as "compris[ing] all the islands which are found between the western extremity of the island of Mindanao, on the one side, and the continent of Borneo and the island of Paragua, on the other side" (Protocol between Spain, Germany and Great Britain, 7 March 1885; see also the Capitulations concluded between Spain and the Sultan of Sulu, 23 September 1836). These documents, therefore, provide no answer to the question whether Ligitan and Sipadan, which are located at a considerable distance from the main island of Sulu, were part of the Sultanate’s dependencies.

110. Malaysia relies on the ties of allegiance which allegedly existed between the Sultan of Sulu and the Bajau Laut who inhabited the islands off the coast of North Borneo and who from time to time may have made use of the two uninhabited islands. The Court is of the opinion that such ties may well have existed but that they are in themselves not sufficient to provide evidence that the Sultan of Sulu claimed territorial title to these two small islands or considered them part of his possessions. Nor is there any evidence that the Sultan actually exercised authority over Ligitan and Sipadan.

111. Turning now to the alleged transfer of title over Ligitan and Sipadan to Spain, the Court notes that in the Protocol between Spain and Sulu Confirming the Bases of Peace and Capitulation of 22 July 1878 the Sultan of Sulu definitively ceded the "Archipelago of Sulu and the dependencies thereof" to Spain. In the Protocol of 7 March 1885 concluded between Spain, Germany and Great Britain, the Spanish Government relinquished, as far as regarded the British Government, all claims of sovereignty over the territory of North Borneo and the neighbouring islands within a zone of 3 marine leagues, mentioned in the 1878 Dent–von Overbeck grant, whereas Great Britain and Germany recognized Spanish sovereignty over "the places effectively occupied, as well over those places not yet so occupied, of the Archipelago of Sulu (Joló), of which the boundaries are determined in Article 2". Article 2 contains the rather vague definition mentioned in paragraph 109 above.

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112. It is not contested between the Parties that Spain at no time showed an interest in the islands in dispute or the neighbouring islands and that it did not extend its authority to these islands. Nor is there any indication in the case file that Spain gave notice of its occupation of these islands, in accordance with the procedure provided for in Article 4 of the 1885 Protocol. Nor is it contested that, in the years after 1878, the BNBC gradually extended its administration to islands lying beyond the 3–marine–league limit without, however, claiming title to them and without protest from Spain.

113. The Court therefore cannot but conclude that there is no evidence that Spain considered Ligitan and Sipadan as covered by the 1878 Protocol between Spain and the Sultan of Sulu or that Germany and Great Britain recognized Spanish sovereignty over them in the 1885 Protocol. It cannot be disputed, however, that the Sultan of Sulu relinquished the sovereign rights over all his possessions in favour of Spain, thus losing any title he may have had over islands located beyond the 3–marine–league limit from the coast of North Borneo. He was therefore not in a position to declare in 1903 that such islands had been included in the 1878 grant to Alfred Dent and Baron von Overbeck.

114. The Court, therefore, is of the opinion that Spain was the only State which could have laid claim to Ligitan and Sipadan by virtue of the relevant instruments but that there is no evidence that it actually did so. It further observes that at the time neither Great Britain, on behalf of the State of North Borneo, nor the Netherlands explicitly or implicitly laid claim to Ligitan and Sipadan.

115. The next link in the chain of transfers of title is the Treaty of 7 November 1900 between the United States and Spain, by which Spain "relinquish[ed] to the United States all title and claim of title ... to any and all islands belonging to the Philippine Archipelago" which had not been covered by the Treaty of Peace of 10 December 1898. Mention was made in particular of the islands of Cagayan Sulu and Sibutu, but no other islands which were situated closer to the coast of North Borneo were mentioned by name.

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116. The Court first notes that, although it is undisputed that Ligitan and Sipadan were not within the scope of the 1898 Treaty of Peace, the 1900 Treaty does not specify islands, apart from Cagayan Sulu and Sibutu and their dependencies, that Spain ceded to the United States. Spain nevertheless relinquished by that Treaty any claim it may have had to Ligitan and Sipadan or other islands beyond the 3–marine–league limit from the coast of North Borneo.

117. Subsequent events show that the United States itself was uncertain to which islands it had acquired title under the 1900 Treaty. The correspondence between the United States Secretary of State and the United States Secretaries of War and of the Navy in the aftermath of the voyage of the USS Quiros and the re–edition of a map of the United States Hydrographic Office, the first version of which had contained a line of separation between United States and British possessions attributing Ligitan and Sipadan to the United States, demonstrate that the State Department had no clear idea of the territorial and maritime extent of the Philippine Archipelago, title to which it had obtained from Spain. In this respect the Court notes that the United States Secretary of State in his letter of 23 October 1903 to the Acting Secretary of War wrote that a bilateral arrangement with Great Britain was necessary "to trace the line demarking [their] respective jurisdictions", whereas with regard to Sipadan he explicitly stated that he was not in a position to determine whether "Sipadan and the included keys and rocks had been recognized as lying within the dominions of Sulu".

118. A temporary arrangement between Great Britain and the United States was made in 1907 by an Exchange of Notes. This Exchange of Notes, which did not involve a transfer of territorial sovereignty, provided for a continuation of the administration by the BNBC of the islands situated more than 3 marine leagues from the coast of North Borneo but left unresolved the issue to which of the parties these islands belonged. There was no indication to which of the islands administered by the BNBC the United States claimed title and the question of sovereignty was therefore left in abeyance. No

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conclusion therefore can be drawn from the 1907 Exchange of Notes as regards sovereignty over Ligitan and Sipadan.

119. This temporary arrangement lasted until 2 January 1930, when a Convention was concluded between Great Britain and the United States in which a line was drawn separating the islands belonging to the Philippine Archipelago on the one hand and the islands belonging to the State of North Borneo on the other hand. Article III of that Convention stated that all islands to the south and west of the line should belong to the State of North Borneo. From a point well to the north– east of Ligitan and Sipadan, the line extended to the north and to the east. The Convention did not mention any island by name apart from the Turtle and Mangsee Islands, which were declared to be under United States sovereignty.

120. By concluding the 1930 Convention, the United States relinquished any claim it might have had to Ligitan and Sipadan and to the neighbouring islands. But the Court cannot conclude either from the 1907 Exchange of Notes or from the 1930 Convention or from any document emanating from the United States Administration in the intervening period that the United States did claim sovereignty over these islands. It can, therefore, not be said with any degree of certainty that by the 1930 Convention the United States transferred title to Ligitan and Sipadan to Great Britain, as Malaysia asserts.

121. On the other hand, the Court cannot let go unnoticed that Great Britain was of the opinion that as a result of the 1930 Convention it acquired, on behalf of the BNBC, title to all the islands beyond the 3–marine–league zone which had been administered by the Company, with the exception of the Turtle and the Mangsee Islands. To none of the islands lying beyond the 3–marine–league zone had it ever before laid a formal claim. Whether such title in the case of Ligitan and Sipadan and the neighbouring islands was indeed acquired as a result of the 1930 Convention is less relevant than the fact that Great Britain’s position on the effect of this Convention was not contested by any other State.

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122. The State of North Borneo was transformed into a colony in 1946. Subsequently, by virtue of Article IV of the Agreement of 9 July 1963, the Government of the United Kingdom agreed to take "such steps as [might] be appropriate and available to them to secure the enactment by the Parliament of the United Kingdom of an Act providing for the relinquishment ... of Her Britannic Majesty’s sovereignty and jurisdiction in respect of North Borneo, Sarawak and Singapore" in favour of Malaysia.

123. In 1969 Indonesia challenged Malaysia’s title to Ligitan and Sipadan and claimed to have title to the two islands on the basis of the 1891 Convention.

124. In view of the foregoing, the Court concludes that it cannot accept Malaysia’s contention that there is an uninterrupted series of transfers of title from the alleged original title–holder, the Sultan of Sulu, to Malaysia as the present one. It has not been established with certainty that Ligitan and Sipadan belonged to the possessions of the Sultan of Sulu nor that any of the alleged subsequent title–holders had a treaty–based title to these two islands. The Court can therefore not find that Malaysia has inherited a treaty–based title from its predecessor, the United Kingdom of Great Britain and Northern Ireland.

125. The Court has already found that the 1891 Convention does not provide Indonesia with a treaty–based title and that title to the islands did not pass to Indonesia as successor to the Netherlands and the Sultan of Bulungan (see paragraphs 94 and 96 above) . 1.1.3. Effectivités

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

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[pp. 66-67] 82. The Court notes that both Parties agree that the Al–Khalifah occupied Zubarah in the 1760s and that, some years later, they settled in Bahrain, but that they disagree as to the legal situation which prevailed thereafter and which culminated in the events of 1937. Bahrain maintains that it continued to rule Zubarah through members of a Naim–led tribal confederation, while Qatar denies this.

83. In the opening paragraph of the agreement of 6 September 1868 concluded between Ali Bin Khalifah and the British Political Resident in the Gulf (see paragraph 40 above), the parties acknowledged that Mohamed bin Khalifah had "repeatedly committed acts of piracy and other irregularities at sea" and that after "his recent piratical act" he had fled from Bahrain. In consequence, Ali Bin Khalifah accepted the following conditions: (1) to deliver immediately to the British all "war buglas and buteels belonging to Mahomed bin Khalifeh and [him]self"; (2) to pay the sums indicated in paragraph 2 of the agreement; (3) "to consider Mahomed bin Khalifeh as permanently excluded from all participation in the affairs of Bahrain and as having no claim to that territory"; and (4) to appoint an agent in Bushire in order to keep the British Resident informed, "in view of preserving the peace at sea, and precluding the occurrence of further disturbance".

84. In the Court's view, the terms of the 1868 Agreement show that any attempt by Bahrain to pursue its claims to Zubarah through military action at sea would not be tolerated by the British. The Court finds that thereafter, the new rulers of Bahrain were never in a position to engage in direct acts of authority in Zubarah. Moreover, in 1895, only an armed intervention by the British stopped the Al–Thani and the Ottomans from attempting to invade Bahrain from Zubarah.

85. Bahrain maintains, however, that the Al–Khalifah continued to exercise control over Zubarah through a Naim–led tribal confederation loyal to them, notwithstanding that at the end of the eighteenth century they had moved the seat of their government to the islands of Bahrain.

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86. The Court cannot accept this contention. While there may have been, at different times, ties of personal allegiance between some members of the Naim and the Ruler of Bahrain, there is also evidence that some members of the Naim served both the Al– Khalifah and the Al–Thani. In any event, there is no evidence that members of the Naim exercised sovereign authority on behalf of the Sheikh of Bahrain within Zubarah. Indeed, they came under the jurisdiction of the local territorial sovereign, which was not Bahrain and had not been Bahrain at least since the events of 1868.

[p. 222 Decl. Higgins] I further believe that, had it so chosen, the Court could also have grounded Bahraini title in the Hawars on the law of territorial acquisition. Among acts occurring in the Hawars were some that did have relevance for legal title. These effectivités were no sparser than those on which title has been founded in other cases. Even if Qatar had, by the time of these early effectivités, extended its own sovereignty to the coast of the peninsula facing the Hawars, it performed no comparable effectivités in the Hawars of its own. These elements are sufficient to displace any presumption of title by the coastal State.

[pp. 244-245 S.O. Kooijmans] 76. At first sight, therefore, the effectivités presented by Bahrain seem hardly sufficient to provide conclusive evidence of what the Permanent Court of International Justice in the Eastern Greenland case called two elements, each of which must be shown to exist, namely "the intention and the will to act as sovereign and some actual exercise of or display of such authority" (P.C.I.J. Reports, Series A/B, No. 53, pp. 45–46), even if it is considerably more than has been presented by Qatar. These two concepts, however, must be appraised in relation to the legal and political context of the relevant period and of the region concerned. And these concepts had at that time definitely a different connotation in the Gulf area than they had in the relations between Western and European States. It would, therefore, in my opinion be wrong in the present case to draw a parallel with the Court's finding in the Kasikili/Sedudu Island (Botswana/Namibia) case to the effect that – in spite of the fact that links of allegiance might have existed between the Masubia tribe and the Caprivi authorities – it had "not been established that the members of this tribe occupied the Island à titre de souverain, i.e., that they were exercising functions of State authority there on behalf of those authorities" (Judgment, I.C.J. Reports 1999, p. 1105, para. 98). In that case

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the authorities concerned were the authorities of European colonial powers which were well acquainted with notions of sovereignty and exclusive jurisdiction.

77. Much more appropriate for the present case seems to be the Permanent Court's finding in the Eastern Greenland case that "it is impossible to read the records of the decisions in cases on 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. Reports, Series A/B, No. 53, p. 46; emphasis added). The correct conclusion in my opinion is that one can be "satisfied with very little in the way of the actual exercise of sovereign rights" by Bahrain, since the other State, Qatar, "could not make out a superior claim". Tertium non datur according to the submissions of both Parties.

78. To put it in other words, 1916, the year of the final withdrawal of the Ottomans from the peninsula and of the establishment of a special relationship with Great Britain, may be seen as the year of Qatar's coming–of–age, providing it with a potential comprehensive legal title to the whole of the peninsula. Whereas Qatar, both before 1916 (when that potential title was not yet complete because of Ottoman sovereignty) and after, succeeded in consolidating its authority in the Zubarah part of the peninsula, it never even tried to do so with regard to the Hawars. The rather meagre effectivités, built up in that period by Bahrain, must be deemed to prevail over Qatar's potential title to the islands, since there was not even a vestige of display of authority by that State.

[pp. 255-256 S.O. Al–Khasawneh] 20. In the absence of clear guidance from the Anglo– Ottoman Convention, Qatar's claim to the Hawars would rest on the strong presumption that islands proximate to the mainland appertain to that mainland. This presumption is however rebuttable. Geographic proximity cannot displace a clearly established title. It would be crucial therefore to examine the subtle interplay between the concept of geographic proximity on the one hand and that of established title on the other; taking into account the weight of effectivités which cannot in themselves displace title, but come to the forefront when that title or its territorial expanse are not clear. As the Court cogently put it: "Finally, there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. The effectivités can then play an essential role in

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showing how the title is interpreted in practice."68

21. Bahrain has claimed to have demonstrated effectivités on the Hawars for a period of almost a century and a half, including the claim that the original Dawasir settlement on Hawars was effected through grant by a Qadi of Zubara (circa 1800) when that town was still under Al–Khalifah rule. The evidence surrounding this particular effectivité is however so clouded in uncertainty and hearsay that not much probative value can be attached to it. What is more pertinent are the Bahraini effectivités carried out in the period 1872–1913, i.e., during the Ottoman presence in Qatar, for it is most unlikely that the Ottomans who were the title– holders in Qatar would have acquiesced to such effectivités had they not been carried out on territory to which their claims of sovereignty were nominal. One may cite in this regard the 1909 Bahraini court decisions relating to land rights and fishing traps in the Hawars, as well as the arrest and compelled attendance in Bahraini courts of Hawar Island residents. As to external supporting evidence, one may also cite the use of the same colour for the Hawars and Bahrain in a survey carried out in 1878 by Captain Izzet Bey, an officer of the Ottoman Army. Unlike the map annexed to the Anglo–Ottoman Convention of 1913, the Izzet Bey map leaves no room for different interpretations.

22. These facts carry an important evidentiary value, for they confirm that the Ottomans, the sovereigns of Qatar at that time, recognized that the Ruler of Bahrain, although he had no title to the peninsular mainland, nevertheless continued to have ownership rights over the islands on the western coast of Qatar, a view not at all unreasonable in view of the fact that for a seafaring people the links of these islands were perceived as being greater with the main islands of Bahrain than with Doha, which is separated from the Hawars by a daunting desert.

23. Additionally, until 1936, the date of the provisional British decision, Bahrain continued to show a number of other effectivités on the Hawars. For example, the licensing of gypsum quarrying, which, in addition to being normally a governmental activity, also suggests the settled nature of the presence on the Hawars of persons closely linked with Bahrain. To be sure such effectivités are not numerous and in some cases are not free of controversy. However, by contrast Qatar could not demonstrate any comparable effectivités, indeed any effectivités at all, over the islands. In the period 1936–1939 there was a flurry of effectivités by 68 Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J. Reports 1986, p. 587, para.63.

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Bahrain, but these should be discounted as no more than attempts to introduce new evidence after the commencement of the dispute.

24. In conclusion, lack of clarity regarding Qatar's original title to the Hawar Islands gives to the effectivités, adduced by Bahrain in support of its contention that it continued to have original title over the Hawars, a crucial role notwithstanding their small number and modest status; for under similar circumstances international law has been satisfied with little evidence, undoubtedly as a reflection of the varying standards of time and place. Following this line of reasoning, I concur with the majority view.

[p. 269-270 D.O. Torres Bernárdez] 22. The determination in the Judgment of the elements of fact in the present case – which should be distinguished from the elements of law – likewise poses certain problems deserving mention in this Introduction. For example, the Judgment is in my opinion particularly restrictive in taking into account historical facts, which are of some relevance and importance in ascertaining the process of consolidation and recognition of the original title in the disputed land territories while, at the same time, it is apparently somewhat liberal with respect to the possible admissibility and effects of minor individual events alleged as evidence of effectivités.

23. I cannot share such a general approach. In international law governing the attribution of sovereignty over land territory, the concept and definition of effectivités is by no means reduced to mere material activities varying in intensity. The material activities concerned should be accompanied by the subjective element of acting à titre de souverain and manifest themselves in a public, peaceful and continuous manner. Moreover, the possible taking into consideration by the law of public, peaceful and continuous acts effected à titre de souverain in a given territory does not necessarily lead to the birth of territorial title to that territory when, in the territory concerned, another State already has prior territorial title, duly consolidated and recognized, opposable to the newcomer State or enforceable as against all States.

[pp. 285-286 D.O. Torres Bernárdez] 72. As to the relationship between "title" and effectivités the normative mandate of international law is clear, namely in the presence of a title the role of the effectivités is always subordinate. The legal primacy of title is

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unquestionable in international law. When the effectivités are contrary to the title, they lose the legal value that they may possibly have in other situations. It is only in the absence of title, or of its proof, that the effectivités may play a determinative role, other circumstances permitting, in the process of ascertaining the holder of the title. Otherwise, the effectivités may serve either to confirm the title or possibly, if the title is not perfectly clear, as a means of interpreting it, and always bearing in mind in concrete cases the nature of the "title" invoked and the features of the norm of international law applicable to the case.

73. In principle, it seems that the Parties are in agreement that "title" prevails over the effectivités as a factor generating sovereignty. But I am less sure about the meaning they have given to the term effectivités. In fact, the term effectivités has been used by counsel in the current proceedings, particularly by counsel for Bahrain, as meaning everything short of "title" and, even in some contexts and not without contradictions, as "title" itself. I cannot accept such an abuse of legal language. Generally, in international law, the term describes the fact of the intentional exercise of jurisdiction or State functions in a given territory independently of the right to do so, namely of the question of the holder of the title. Thus, the effectivités are not per se "title" but an element of fact that may be confirmatory of "title", or which even in certain circumstances and in accordance with certain conditions provided for by international law, may be conducive to the acquisition of "title". Thus, the effectivités may be a "mode" of acquisition of "title" in the said circumstances and conditions, but they are not "title" in themselves even in those cases. For cases of effectivités becoming "title" one must look to international law and take due account of the particular circumstances of the case (nature of the acts, absence of a previous title, etc.).

[p. 286 D.O. Torres Bernárdez] 75. In addition to the case of the effective, peaceful and continuous occupation of a terra nullius, the effectivités may also have a role to play as proof of alleged title to a territory acquired by a mode other than occupation or as an exercise of title. But again not every act invoked as an effectivité is necessarily in international law an effectivité capable of being admitted as proof of title or of the exercise of title. The acts must be actes publics et paisibles de nature étatique, namely a manifestation of State authority imputable to the State in question. If the act has not been performed à titre de souverain or is not imputable as such to the State concerned it would not be as proof of title to territory or of its exercise.

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76. Furthermore, effectivités are by no means the only manifestation or form of evidence of title to be taken into account. The general conduct of the Parties, including, as the case may be, admissions, and instances of recognition by interested third parties are often more revealing as to the holder of the title, particularly in the case of original title, than alleged effectivités which are more frequently than not quite flawed. Lastly, there is the intertemporal factor. "Critical dates" and "critical periods" are applied by international courts and tribunals for distinguishing effectivités admissible in casu from other possible alleged effectivités. Moreover, the status quo agreed by the parties to the dispute also has a role to play in this respect.

[p. 385 D.O. Torres Bernárdez] 357. This obliges me to recall the obvious, namely that even an admissible State effectivité is no more than a material manifestation of a given unilateral conduct of the State concerned, whose possible legal effects need to be defined in concreto in the light of the various circumstances and, first of all, of the operating norm or norms of international law relevant in the final analysis to an evaluation of the said unilateral conduct. The connection between the unilateral conduct manifest in an admissible effectivité and a given norm of international law is of paramount importance for ascertaining the possible legal effects of that unilateral conduct in international law. It is not at all the same thing to invoke an admissible effectivité in connection, for example, with the acquisition of title over a terra nullius through occupation as it is to invoke the same effectivité in order to transform an unlawful occupation of foreign territory into something else, namely into a lawful title under international law.

[p. 455 S.O. Fortier] 25. International law recognizes that in certain territories that are possessed of exceptional circumstances such as low habitability, of which the Zubarah region is undoubtedly one, a Ruler might establish and maintain title to his territory by manifestations of dominion or control through tribes who gave him their allegiance and looked to him for assistance.

[p. 457 S.O. Fortier] 29. In my opinion, sovereignty over Zubarah appertained to Bahrain through the period from 1868 to 1937 as a result of the presence in the region of the Naim

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tribe, which clearly manifested its allegiance to the Ruler of Bahrain and accepted his political authority. The record provides numerous examples of this relationship.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 351] 64. The Court first observes that the work of the LCBC was intended to lead to an overall demarcation of a frontier already delimited. Although the result of the demarcation process is not binding on Nigeria, that fact has no legal implication for the pre–existing frontier delimitation. It necessarily follows that Nigeria’s claim based on the theory of historical consolidation of title and on the acquiescence of Cameroon must be assessed by reference to this initial determination of the Court. During the oral pleadings Cameroon’s assertion that Nigerian effectivités were contra legem was dismissed by Nigeria as "completely question–begging and circular". The Court notes, however, that now that it has made its findings that the frontier in Lake Chad was delimited long before the work of the LCBC began, it necessarily follows that any Nigerian effectivités are indeed to be evaluated for their legal consequences as acts contra legem.

[pp. 353-355] 68. ... 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), 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 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), I.C.J. Reports 1994, pp. 75–76, para. 38.)

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It is this first eventuality here envisaged by the Court, and not the second, which corresponds to the situation obtaining in the present case. Thus Cameroon held the legal title to territory lying to the east of the boundary as fixed by the applicable instruments (see paragraph 53 above). 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), I.C.J. Reports 1992, pp. 408–409, para. 80). The evidence presented to the Court suggests that before 1987 there was some administrative activity by Cameroon in the island and lake–bed villages that were beginning to be established. There were yearly administrative visits from 1982 to 1985; the villages of Chika’a, Naga’a, Katti Kime and Darak participated in elections for the presidency of the Republic of Cameroon; administrative action was undertaken for the maintenance of law and order in Naga’a, Gorea Changi and Katti Kime. The 1984 census included 18 villages, among them Darak. Appointments of village chiefs were referred for approval to the Cameroon prefect. As for the collection of taxes by Cameroon, there is modest evidence relating to Katti Kime, Naga’a and Chika’a for the years 1983 to 1985.

69. It appears from the case file that the control of certain local Cameroonian officials over the area was limited. As Nigerian settlements, and the organization within them of village life, became supplemented from 1987 onwards by Nigerian administration and the presence of Nigerian troops, Cameroon restricted its protests to a few "incidents" (notably the taking over of the fisheries training station at Katti Kime), rather than to the evolving situation as such. There is some evidence however that Cameroon continued sporadically to seek to exercise some administrative control in these areas, albeit with little success in this later period. Cameroon has put to the Court that it did not regard the activities of Nigeria in Lake Chad in the years 1984 to 1994 as à titre de souverain, because Nigeria was in those years fully participating in the work entrusted to the LCBC and its contractors, and agreed that they should work on the basis of the various treaty instruments which governed title. The Court cannot accept Nigeria’s argument that the explanation given

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by Cameroon depends upon the supposition that the Report of Experts was binding upon Nigeria automatically. It depends rather upon the agreed basis upon which the demarcation work was to be carried out. On 14 April 1994, Nigeria in a diplomatic Note, for the first time claimed sovereignty over Darak. Cameroon firmly protested in a Note Verbale of 21 April 1994, expressing "its profound shock at the presumption that Darak is part of Nigerian territory", and reiterating its own sovereignty. Shortly after, it also enlarged the scope of its Application to the Court.

70. 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). The Court therefore concludes that, as regards the settlements situated to the east of the frontier confirmed in the Henderson–Fleuriau Exchange of Notes of 1931, sovereignty has continued to lie with Cameroon (see below, p. 57, sketch–map No. 2).

[pp. 414-416] 221. ... The Court finds that the evidence before it indicates that the small population of Bakassi already present in the early 1960s grew with the influx from Nigeria in 1968 as a result of the civil war in that country. Gradually sizeable centres of population were established. The Parties are in disagreement as to the total number of Nigerian nationals living in the peninsula today, but it is clear that it has grown considerably from the modest numbers reported in the 1953 and 1963 population censuses. Nor is there any reason to doubt the Efik and Effiat toponomy of the settlements, or their relationships with Nigeria. But these facts of themselves do not establish Nigerian title over Bakassi territory; nor can they serve as an element in a claim for historical consolidation of title, for reasons already given by the Court (see paragraphs 64–70).

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222. Nigeria has relied before the Court, in considerable detail, often with supporting evidence, on many activities in Bakassi that it regards as proof both of settled Nigerian administration and of acts in exercise of sovereign authority. Among these acts are the establishment of schools, the provision of health facilities for many of the settlements and some tax collection. It is true that the provision of education in the Bakassi settlements appears to be largely Nigerian. Religious schools were established in 1960 at Archibong, in 1968 at Atabong and in Abana in 1969. These were not supported by public funds, but were under the authority of the Nigerian examination and education authorities. Community schools were also established at Atabong East in 1968, Mbenonong in 1975 and Nwanyo in 1981. The schools established in Abana in 1992 and in Archibong and Atabong in 1993, were Nigerian government schools or State secondary schools. There is evidence that since 1959 health centres have been established with the assistance of local communities receiving supplies, guidance and training for personnel in Nigeria. The ten centres include centres established at Archibong in 1959, Mbenonong in 1960, Atabong West in 1968, Abana in 1991 and Atabong East in 1992. There was also some collection of tax, certainly from Akwa, Archibong, Moen Mong, Naranyo, Atabong and Abana. Nigeria notes that Cameroon failed actively to protest these administrative activities of Nigeria before 1994 (save, notably, the building by Nigeria of a primary school in Abana in 1969). It also contends that the case law of this Court, and of certain arbitral awards, makes clear that such acts are indeed acts à titre de souverain, and as such relevant to the question of territorial title (Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953; Western Sahara, Advisory Opinion, I.C.J. Reports 1975; Rann of Kutch, Arbitral Award, 50 ILR 1; Beagle Channel Arbitration, 52 ILR 93).

223. 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 effectivités suggest that title lies with one country rather than another is not the same legal question as whether such effectivités can serve to displace an established treaty title. As the Chamber of the Court made clear in the Frontier Dispute (Burkina

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Faso/Republic of Mali), 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). In the view of the Court the more relevant legal question in this case is whether the conduct of Cameroon, as the title holder, can be viewed as an acquiescence in the loss of the treaty title that it inherited upon independence. There is some evidence that Cameroon attempted, inter alia, to collect tax from Nigerian residents, in the year 1981–1982, in Idaboto I and II, Jabare I and II, Kombo Abedimo, Naumsi Wan and Forisane (West and East Atabong, Abana and Ine Ikoi). But it engaged in only occasional direct acts of administration in Bakassi, having limited material resources to devote to this distant area. However, its title was already established. Moreover, as the Court has shown above (see paragraph 213), in 1961–1962 Nigeria clearly and publicly recognized Cameroon title to Bakassi. That continued to be the position until at least 1975, when Nigeria signed the Maroua Declaration. No Nigerian effectivités in Bakassi before that time can be said to have legal significance for demonstrating a Nigerian title; this may in part explain the absence of Cameroon protests regarding health, education and tax activity in Nigeria. The Court also notes that Cameroon had since its independence engaged in activities which made clear that it in no way was abandoning its title to Bakassi. Cameroon and Nigeria participated from 1971 to 1975 in the negotiations leading to the Yaoundé, Kano and Maroua Declarations, with the maritime line clearly being predicated upon Cameroon’s title to Bakassi. Cameroon also granted hydrocarbon licences over the peninsula and its waters, again evidencing that it had not abandoned title in the face of the significant Nigerian presence in Bakassi or any Nigerian effectivités contra legem. And protest was immediately made regarding Nigerian military action in 1994.

224. The Court considers that the foregoing shows that Nigeria could not have been acting à titre de souverain before the late 1970s, as it did not consider itself to have title over Bakassi; and in the ensuing period the evidence does not indicate an acquiescence by Cameroon in the abandonment of its title in favour of Nigeria.

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[p. 558 D.O. Ajibola] 52. The role of effectivité which deals majorly with the conduct and practice of the parties and has its legal basis founded on some of the provisions of the Vienna Convention on the Law of Treaties of 1969, particularly its paragraph 31, has as its advantage, the need to ensure stability along the boundaries of two States. Short of invalidating a legal title that bears no relation to the situation on the ground, effectivité comes in to play the role of sustaining complementarily the boundary based on the practice and conduct of the parties over the years which, in effect, is similar to the principle of uti possidetis juris (de facto). Consequently, effectivité comes in to adjust, vary or amend such boundary as may be structurally established by the legal title.

[p. 562 D.O. Ajibola] 64. In its Judgment, particularly in paragraph 325 III (A), (B) and (C), the Court fails to take into consideration the situation on the ground in the Bakassi Peninsula, despite the fact that no one is left in doubt that at the moment this territory, and indeed since independence, is occupied and firmly in possession of Nigeria and inhabited by Nigerian people; hence my reason for voting against the decision of the Court. This is an artificial decision that fails blatantly to take into consideration, contrary to all the accepted principles of international law and practice, that effectivités must invariably be given consideration in a matter of this nature. Furthermore, the Court fails to take into account the submission of Nigeria based on historical consolidation, which the Court now refers to as mere theory. It is my strong view that, if the principle of historical consolidation is a theory, it is one that the Court, over the years in its judgments (as will be shown later), has given its approval and support. The decision of the Court, in my view, is rather a political decision than a legal one.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002

[p. 678] 126. The Court will therefore now consider whether evidence furnished by the Parties with respect to "effectivités" relied upon by them provides the basis for a decision as – requested in the Special Agreement – on the question to whom sovereignty over Ligitan and Sipadan belongs. The Court recalls that it has already ruled in a number of cases on the legal relationship between "effectivités" and title. The

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relevant passage for the present case can be found in the Judgment in the Frontier Dispute (Burkina Faso/Republic of Mali) case, where the Chamber of the Court stated after having said that "a distinction must be drawn among several eventualities": "[i]n 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), 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, para. 68).

127. Both Parties claim that the effectivités on which they rely merely confirm a treaty– based title. On an alternative basis, Malaysia claims that it acquired title to Ligitan and Sipadan by virtue of continuous peaceful possession and administration, without objection from Indonesia or its predecessors in title. The Court, having found that neither of the Parties has a treaty–based title to Ligitan and Sipadan (see paragraphs 92 and 124 above), will consider these effectivités as an independent and separate issue.

[pp. 682-686] 134. The Court first recalls the statement by the Permanent Court of International Justice in the Legal Status of Eastern Greenland (Denmark v. Norway) case: "a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power." The Permanent Court continued: "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. This is particularly true

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in the case of claims to sovereignty over areas in thinly populated or unsettled countries." (P.C.I.J., Series A/B, No. 53, pp. 45–46.) In particular in the case of very small islands which are uninhabited or not permanently inhabited – like Ligitan and Sipadan, which have been of little economic importance (at least until recently) – effectivités will indeed generally be scarce.

135. The Court further observes that it cannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them (see the Arbitral Award in the Palena case, 38 International Law Reports (ILR), pp. 79–80). The Court will, therefore, primarily, analyse the effectivités which date from the period before 1969, the year in which the Parties asserted conflicting claims to Ligitan and Sipadan.

136. The Court finally observes that it can only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such. Regulations or administrative acts of a general nature can therefore be taken as effectivités with regard to Ligitan and Sipadan only if it is clear from their terms or their effects that they pertained to these two islands.

137. Turning now to the effectivités relied on by Indonesia, the Court will begin by pointing out that none of them is of a legislative or regulatory character. Moreover, the Court cannot ignore the fact that Indonesian Act No. 4 of 8 February 1960, which draws Indonesia’s archipelagic baselines, and its accompanying map do not mention or indicate Ligitan and Sipadan as relevant base points or turning points.

138. Indonesia cites in the first place a continuous presence of the Dutch and Indonesian navies in the waters around Ligitan and Sipadan. It relies in particular on the voyage of the Dutch destroyer Lynx in November 1921. This voyage was part of a joint action of the British and Dutch navies to combat piracy in the waters east of Borneo. According to the report by the commander of the Lynx, an armed sloop was

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despatched to Sipadan to gather information about pirate activities and a seaplane flew a reconnaissance flight through the island’s airspace and subsequently flew over Ligitan. Indonesia concludes from this operation that the Netherlands considered the airspace, and thus also the islands, as Dutch territory.

139. In the opinion of the Court, it cannot be deduced either from the report of the commanding officer of the Lynx or from any other document presented by Indonesia in connection with Dutch or Indonesian naval surveillance and patrol activities that the naval authorities concerned considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the Netherlands or Indonesia.

140. Finally, Indonesia states that the waters around Ligitan and Sipadan have traditionally been used by Indonesian fishermen. The Court observes, however, that activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority.

141. The Court concludes that the activities relied upon by Indonesia do not constitute acts à titre de souverain reflecting the intention and will to act in that capacity.

142. With regard to the effectivités relied upon by Malaysia, the Court first observes that pursuant to the 1930 Convention, the United States relinquished any claim it might have had to Ligitan and Sipadan and that no other State asserted its sovereignty over those islands at that time or objected to their continued administration by the State of North Borneo. The Court further observes that those activities which took place before the conclusion of that Convention cannot be seen as acts "à titre de souverain", as Great Britain did not at that time claim sovereignty on behalf of the State of North Borneo over the islands beyond the 3–marine–league limit. Since it, however, took the position that the BNBC was entitled to administer the islands, a position which after 1907 was formally recognized by the United States, these administrative activities cannot be ignored either.

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143. As evidence of such effective administration over the islands, Malaysia cites the measures taken by the North Borneo authorities to regulate and control the collecting of turtle eggs on Ligitan and Sipadan, an activity of some economic significance in the area at the time. It refers in particular to the Turtle Preservation Ordinance of 1917, the purpose of which was to limit the capture of turtles and the collection of turtle eggs "within the State [of North Borneo] or the territorial waters thereof". The Court notes that the Ordinance provided in this respect for a licensing system and for the creation of native reserves for the collection of turtle eggs and listed Sipadan among the islands included in one of those reserves. Malaysia adduces several documents showing that the 1917 Turtle Preservation Ordinance was applied until the 1950s at least. In this regard, it cites, for example, the licence issued on 28 April 1954 by the District Officer of Tawau permitting the capture of turtles pursuant to Section 2 of the Ordinance. The Court observes that this licence covered an area including "the islands of Sipadan, Ligitan, Kapalat, Mabul, Dinawan and Si–Amil". Further, Malaysia mentions certain cases both before and after 1930 in which it has been shown that administrative authorities settled disputes about the collection of turtle eggs on Sipadan.

144. Malaysia also refers to the fact that in 1933 Sipadan, under Section 28 of the Land Ordinance, 1930, was declared to be "a reserve for the purpose of bird sanctuaries".

145. The Court is of the opinion that both the measures taken to regulate and control the collecting of turtle eggs and the establishment of a bird reserve must be seen as regulatory and administrative assertions of authority over territory which is specified by name.

146. Malaysia further invokes the fact that the authorities of the colony of North Borneo constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963, that those lighthouses exist to this day and that they have been maintained by Malaysian authorities since its independence. It contends that the construction and

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maintenance of such lighthouses is "part of a pattern of exercise of State authority appropriate in kind and degree to the character of the places involved".

147. The Court observes that the construction and operation of lighthouses and navigational aids are not normally considered manifestations of State authority (Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, p. 71). The Court, however, recalls that in its Judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) it stated as follows: "Certain types of activities invoked by Bahrain such as the drilling of artesian wells would, taken by themselves, be considered controversial as acts performed à titre de souverain. The construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of Qit’at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain’s claim that it has sovereignty over it." (Judgment, Merits, I.C.J. Reports 2001, para. 197.) The Court is of the view that the same considerations apply in the present case.

148. The Court notes that the activities relied upon by Malaysia, both in its own name and as successor State of Great Britain, are modest in number but that they are diverse in character and include legislative, administrative and quasi–judicial acts. They cover a considerable period of time and show a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands. The Court moreover cannot disregard the fact that at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever expressed its disagreement or protest. In this regard, the Court notes that in 1962 and 1963 the Indonesian authorities did not even remind the authorities of the colony of North Borneo, or Malaysia after its independence, that the construction of the lighthouses at those times had taken place on territory which they considered Indonesian; even if they

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regarded these lighthouses as merely destined for safe navigation in an area which was of particular importance for navigation in the waters off North Borneo, such behaviour is unusual.

149. Given the circumstances of the case, and in particular in view of the evidence furnished by the Parties, the Court concludes that Malaysia has title to Ligitan and Sipadan on the basis of the effectivités referred to above.

[pp. 696 -697 D.O. Franck] 17. ... I do not agree, but neither do I really disagree, with the Court in its weighing up of the effectivités adduced by Indonesia and Malaysia to support their respective claims of title. To weigh, on the one hand, occasional administration of turtle egg harvesting and of a bird sanctuary neither of these, apparently, in situ together with the establishment of a few navigational lights (by Britain/Malaysia) against, on the other hand, naval and air patrolling and piracy–control (by Indonesia) appears to me like trying to weigh precisely a handful of feathers against a handful of grass: it can be done, but not very convincingly. The Court has not set out a coherent table of weights and measures for assessing and comparing the effectivités here pleaded, nor could it be expected to do so, given their ephemeral nature. Nevertheless, it is not convincing to give preference to a very few activities by one party while discounting those of the other party without some effort to develop neutral principles by which the relative weight of their respective effectivités can be compared.

18. The problem of their comparative weight is augmented by the brevity of the period from which evidence of effectivités may properly be pleaded. There is no evidence before this Court that, prior to 1930, Britain believed itself to have title to either Ligitan or Sipadan. Whatever slender acts of administration might have been undertaken prior to that date by the British North Borneo Company were not claimed to have been made à titre de souverain. As Judge Huber said in the Island of Palmas case, the demonstration of effectivités must consist "in the actual display of State activities, such as belongs only to the territorial sovereign" (Island of Palmas (Netherlands/United States of America), Reports of International Arbitral Awards (RIAA), Vol. II, p. 839). To qualify, they must be activities undertaken not as a good neighbour or a gratuitous intermeddler, but as an exercise of sovereign responsibility for the territory in question. The harvesting activities of fishermen were found not to constitute occupation à titre de souverain by this Court in the Kasikili/Sedudu Island

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(Botswana/Namibia) case (Judgment, I.C.J. Reports 1999 (II), p. 1095, para. 75) and the same principle is applicable to turtle egg collectors. Similarly, the construction by Malaysia of lighthouses on Ligitan and Sipadan may or may not be evidence of occupation à titre de souverain when seen by itself, without reference to the 1891 Convention. Even so, the Arbitral Award of 9 October 1998 between Eritrea and Yemen stated: "The operation or maintenance of lighthouses and navigational aids is normally connected to the preservation of safe navigation, and not normally taken as a test of sovereignty." (Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), 9 October 1998, p. 91, para. 328; see also to same effect Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, pp. 70–71.)

19. This is especially so when, as in this case, the territory is the subject of a competing claim of sovereignty based on conventional title, against which mere effectivités have been held to be of little evidentiary value (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 472, para. 181; ibid., p. 516, para. 266). As this Court has pointed out, "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" (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 587, para. 63). Moreover "acts ... largely of a routine and administrative character performed by local officials ..." were held insufficient in the Sovereignty over Certain Frontier Land (Belgium/Netherlands) case "to displace Belgian sovereignty established by ... Convention" (Judgment, I.C.J. Reports 1959, p. 229). Effectivités are rubber spears when wielded against the shield of conventional title. In the present case, it is title under the 1891 Convention that Indonesia claims. Thus the minor effectivités presented by Britain and Malaysia depend for whatever persuasive power they may have on a determination that the 1891 Convention failed to resolve the question of title to Ligitan and Sipadan: a proposition I reject (see below).

Case Concerning the Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005

[pp. 109-110] 27. … the Parties have discussed the legal value, in the light of the uti possidetis juris principle, of post-colonial effectivités.

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The Chamber notes that both Parties have on occasion sought to confirm the legal title which they claim by relying on acts whereby their authorities allegedly exercised sovereignty over the disputed territories after 1960; such effectivités have been invoked by Niger inter alia in respect of activities relating to the River Niger and its islands, and by Benin in respect of activities relating to the right bank of the River Mekrou. Such an approach should not necessarily be excluded. As stated by the Chamber formed in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), it is possible to "have regard ..., in certain instances, to documentary evidence of postindependence effectivités when ... they afford indications in respect of the ... uti possidetis juris boundary, providing a relationship exists between the effectivités concerned and the determination of that boundary" (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 399, para. 62).

[p. 127] 75. In view of the foregoing, the Chamber concludes that neither of the Parties has succeeded in providing evidence of title on the basis of regulative or administrative acts during the colonial period.

76. Therefore, the Chamber will now consider whether the evidence furnished by the Parties with respect to effectivités can provide the basis for it to determine the course of the frontier in the sector of the River Niger and to which of the two States each of the islands in the river belongs, in particular the island of Lété.

77. The Chamber recalls in this regard that the Court has previously ruled in a number of cases on the legal relationship between effectivités and title. The passage most pertinent to the present case can be found in the Judgment in the Frontier Dispute (Burkina Faso/Republic of Mali) case, in which the Chamber of the Court, having noted that "a distinction must be drawn among several eventualities" when evaluating the legal relationship between effectivités and title, stated, inter alia, that: "[i]n the event that the effectivité does not co-exist with any legal title, it must invariably be

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taken into consideration" (I.C.J. Reports 1986, p. 587, para. 63; see also Territorial Dispute (Libyan Arab Jamahiriya/Chad), 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, I.C.J. Reports 2002, p. 353, para. 68); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 678, para. 126).

[pp. 132-133] 101. Benin contends that, even if the local authorities in Niger did administer Lété and other islands during the period between 1914 and 1954, they could not have done so in the belief that they were acting "as of right". In Benin’s view, the modus vivendi was merely a temporary and practical arrangement, pending a definitive settlement of the boundary issue. By its very nature, it precluded the existence of an intention to act "as of right" and these administrative acts cannot therefore be relied on as effectivités. As regards the period after 1954, Benin contends that Niger had, in the letter of 27 August 1954, relinquished any intention to act "as of right".

102. The Chamber observes that the concept of the intention and will to act as sovereign, as mentioned in the Legal Status of Eastern Greenland (Denmark v. Norway) case (1933, P.C.I.J., Series A/B, No. 53, pp. 45-46), is a concept of international law and cannot be transplanted purely and simply to colonial law. The Chamber’s sole task in applying the principle of uti possidetis juris is to ascertain whether it was the colony of Dahomey or that of Niger which effectively exercised authority over the areas which the Parties now claim as sovereign States.

103. For all these reasons and in the circumstances of the case, particularly in light of the evidence furnished by the Parties, the Chamber concludes that the boundary between Benin and Niger follows the main navigable channel of the River Niger as it existed at the dates of independence, it being understood that, in the vicinity of the three islands opposite Gaya, the boundary passes to the left of these islands. Consequently, Benin has title to the islands situated between the boundary thus defined

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and the right bank of the river and Niger has title to the islands between that boundary and the left bank of the river.

1.2. Boundaries 1.2.1. Land Boundaries

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[pp. 359-360] 84. The Parties have devoted lengthy arguments to the difference between delimitation and demarcation and to the Court’s power to carry out one or other of these operations. As the Court had occasion to state in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) (I.C.J. Reports 1994, p. 28, para. 56), 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. 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.

85. The task which Cameroon referred to the Court in its Application is "to specify definitively" (emphasis added by the Court) the course of the land boundary as fixed by the relevant instruments of delimitation. Since the land boundary has already been delimited by various legal instruments, it is indeed necessary, in order to specify its course definitively, to confirm that those instruments are binding on the Parties and are applicable. However, contrary to what Cameroon appeared to be arguing at certain stages in the proceedings, the Court cannot fulfil the task entrusted to it in this case by limiting itself to such confirmation. Thus, when the actual content of these instruments

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is the subject of dispute between the Parties, the Court, in order to specify the course of the boundary in question definitively, is bound to examine them more closely. The dispute between Cameroon and Nigeria over certain points on the land boundary between Lake Chad and Bakassi is in reality simply a dispute over the interpretation or application of particular provisions of the instruments delimiting that boundary. It is this dispute which the Court will now endeavour to settle.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002 [pp. 705-706 D.O. Franck] 43. In the present case, this Court might have built on the Lausanne and Preah Vihear precedents to confirm the legal presumption in favour of the dispositiveness of frontiers defined in a treaty, i.e., that, when a treaty is made for the purpose of defining a boundary, it should be construed, if possible, to have succeeded in doing so to the full extent of the interface between the parties, unless there is persuasive evidence that some areas were meant to be exempt from its allocation. The onus of proving the intent to create such an exemption, however, should lie with the party asserting it.

44. Presumptions are necessary and well–established aspects both of common and civil law and cannot but be a part of the fabric of public international law. They capture the common experience of persons everywhere that make inferences an essential part of rational thought and action. As such, they are often captured in legal maxims recognized across diverse legal systems (Henri Roland, Laurent Boyer, Adages du droit français, 3rd ed., 1992, p. 38; and see examples indexed under the title "Presomption" at p. 1009.) As Professor Bin Cheng has pointed out: "Without going so far as to holding them to be true, it is legitimate for a tribunal to presume the truth of certain facts or of a certain state of affairs, leaving it to the party alleging the contrary to establish its contention. These presumptions serve as initial premises of legal reasoning." (Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1987, p. 304.)

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The same point, citing various instances, is made by Professor Thirlway: "presumptions can and do play an important part in directing the reasoning of a tribunal ... in the delicate operation of ascertainment of the intention of one or more States ... This results from the fact that direct circumstantial evidence of an intention may be very hard to come by, or may in the nature of things not exist." (H. W. A. Thirlway, "Evidence before International Courts in Tribunals", in Encyclopedia of Public International Law, Vol. Two, 1995, p. 303.)

45. In the present case, there is circumstantial evidence that the Parties thought they were resolving all the territorial problems arising out of their overlapping imperial claims in the Borneo area. Even were that evidence inconclusive, it is surely sufficient to invoke the rebuttable presumption, based on the commonsense and experience of diplomacy and recognized by several international tribunals, to the effect that when States negotiate a boundary allocating or confirming their respective areas of sovereignty over territories, these shall be presumed to have intended to resolve all outstanding and potentially disputatious claims in the area in question, subject only to convincing evidence to the contrary.

46. If the Court had applied this legal presumption to the Indonesia–Malaysia dispute, it would have concluded, as I do, that the 1891 Convention intended Ligitan and Sipadan to be Dutch and, now, Indonesian.

Case Concerning the Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005

[pp. 141-142] 123. The Chamber initially observes that the two bridges crossing the River Niger between Gaya and Malanville were built in 1958 and 1988-1989 respectively. They are more than 300 m in length and they connect platforms built on each of the banks, which are used for customs and other administrative purposes.

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The Chamber further observes that there are a number of arrangements in place which provide that the use and maintenance of these bridges, of which the Parties have joint ownership, is to be financed by them on an equal basis. It finally observes that these agreements and arrangements do not contain any provisions on territorial issues.

124. The Chamber notes that neither of the Parties has contended that there is a rule of customary international law regarding territorial delimitation in the case of bridges over international watercourses. It further notes that the various precedents cited in the case file are all based on bilateral agreements. The Chamber observes that, in the absence of an agreement between the Parties, the solution is to extend vertically the line of the boundary on the watercourse. This solution accords with the general theory that a boundary represents the line of separation between areas of State sovereignty, not only on the earth’s surface but also in the subsoil and in the superjacent column of air. Moreover, the solution consisting of the vertical extension of the boundary line on the watercourse avoids the difficulties which could be engendered by having two different boundaries on geometrical planes situated in close proximity to one another. In light of the foregoing, the Chamber concludes that the boundary on the bridges between Gaya and Malanville follows the course of the boundary in the river. This finding is without prejudice to the arrangements in force between Benin and Niger regarding the use and maintenance of these bridges, which are financed by the two States on an equal basis (see paragraph 123 above). The Chamber observes in particular that the question of the course of the boundary on the bridges is totally independent of that of the ownership of those structures, which belong to the Parties jointly.

[pp. 149-150] 144. The Chamber would recall that, in the case concerning Kasikili/Sedudu Island (Botswana/Namibia), the Court observed that: "Treaties or conventions which define boundaries in water courses nowadays usually refer to the thalweg as the boundary when the watercourse is navigable

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and to the median line between the two banks when it is not, although it cannot be said that practice has been fully consistent." (I.C.J. Reports 1999 (II), p. 1062, para. 24.) In the present case, the Chamber notes that, during a reconnaissance mission carried out in April 1998, the joint technical committee of the Joint Benin-Niger Boundary Delimitation Commission "plotted the co-ordinates of the point of intersection of the axes of the River Niger and River Mekrou, but was not able to continue its work beyond that point because navigation on the River Mekrou [was] not possible due to the low water level". Moreover, the Parties did not provide the Chamber with any documents that would enable the exact course of the thalweg of the Mekrou to be identified. The Chamber notes that in all likelihood there is a negligible difference between the course of the thalweg and the course of the median line of the River Mekrou, but considers that, in view of the circumstances, including the fact that the river is not navigable, a boundary following the median line of the Mekrou would more satisfactorily meet the requirement of legal security inherent in the determination of an international boundary.

145. The Chamber concludes, for the foregoing reasons, that, in the sector of the River Mekrou, the boundary between Benin and Niger is constituted by the median line of that river.

1.2.2. Maritime Boundaries

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[pp. 91-92] 169. 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

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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.

170. More to the north, however, where the coasts of the two States are no longer opposite to each other but are rather comparable to adjacent coasts, the delimitation to be carried out will be one between the continental shelf and exclusive economic zone belonging to each of the Parties, areas in which States have only sovereign rights and functional jurisdiction. Thus both Parties have differentiated between a southern and a northern sector.

[pp. 93-94] 173. 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 ... objects 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", as was stated by the Chamber of the Court in the Gulf of Maine case (I.C.J. Reports 1984, p. 327, para. 194). In that case, the Chamber was asked to draw a single line which would delimit both the continental shelf and the superjacent water column.

174. 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 superjacent waters and 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

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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.

175. The Parties agree that the provisions of Article 15 of the 1982 Convention on the Law of the Sea, headed "Delimitation of the territorial sea between States with opposite or adjacent coasts", are part of customary law. This Article provides: "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 baselines 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."

176. 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.

177. 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

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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 basepoints which in their view could be used by the Court for the determination of the maritime boundary. *

1.2.3. Air and Space

1.2.4. Principle of "uti possidetis"

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001 [pp. 230-232 S.O. Kooijmans] 18. I disagree with the Court's evaluation of the legal effect to be given to the 1939 decision. My vote in favour of paragraph 2 (a) of the dispositif is based on considerations relating to title to sovereignty, geographical proximity and effectivités. Since, however, Bahrain explicitly invoked the principle of uti possidetis juris – though at a very late stage – and since this argument is of a preliminary character, as counsel for Bahrain correctly stated, I deem it necessary to give first my views on the question whether this principle is applicable in the present case. If it were, all other grounds submitted by the Parties would have become redundant.

19. In its famous statement in the case concerning the Frontier Dispute (Burkina Faso v. Mali), the Chamber of the Court called the principle of uti possidetis "a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power." (I.C.J. Reports 1986, p. 565, para. 20; emphasis added.)

20. The Chamber's statement in my opinion presumes a transfer of sovereignty from the former colonial power to a newly independent State. Malcolm Shaw is of a similar opinion when, in his seminal article "The Heritage of States: The Principle of Uti Possidetis Juris

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Today" he says that: "The principle of uti possidetis functions in the context of the transmission of sovereignty and the creation of a new independent State and conditions that process".69

21. Shaw's formulation is broader than that used by the Chamber of the Court, as it also covers the situation where parts of an already independent State achieve independence as the result of the (partial) dissolution of that State. Under those circumstances the principle has been declared applicable (i.a., by the Arbitration Commission of the European Conference on Yugoslavia) with regard to administrative boundaries between the component units of the dissolving State. As the Commission said: "Except where otherwise agreed, the former (administrative) boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and in particular from the principle of uti possidetis." According to Shaw the rationale for application of the principle in such non–colonial situations is the same as that underlying the Chamber's position in the Burkina Faso/Mali case: "the same dangers resulting from the break–up of existing States are evident".

22. What the two situations just mentioned have in common is that administrative, i.e., non– international boundaries are turned into international boundaries. It would be nonsensical to apply the principle to a boundary separating the colonial territories of two different colonial powers. That boundary was already an international boundary and as such protected by international law. What distinguishes the present case from the situations in which the principle was applied is of a similar character.

23. The crucial question in my view is: is there (a) a transfer of sovereignty from one State to another State as a result of which (b) administrative boundaries are invested "with a significance and a purpose that they were never intended to have". In the present case neither of these questions can be answered affirmatively.

24. As already mentioned (para. 16 above), there was no transfer of sovereignty in 1971 by the United Kingdom to either Bahrain or Qatar; these States kept the same identity as they had 69 British Year Book of International Laaw, Vol. 67. 1996, p.98.

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before relations with the Protecting Power were terminated. It is often said that the uti possidetis principle is only applicable when there is a succession of States. Bahrain has contended that this concept must be interpreted also to mean "replacement of one State by another in the responsibility for the international relations of territory" and that this is what actually occurred in 1971.

25. It is true that both Gulf States were not capable of conducting a foreign policy without a "droit de regard" of the Protecting Power and that in this respect their sovereignty was restricted. But more important than the question whether there was a succession of States in the narrow or the broad sense of the word, is the fact that there was no transfer of sovereignty. From a legal point of view there is a world of difference between restricted sovereignty and non–existent sovereignty. The former can be restored, the latter can only be replaced by a transferred, and therefore new sovereignty.

26. Of equal importance is the question whether there was an administrative boundary which was transformed into an international boundary. From the files it is patently clear that the British Government never intended to draw an administrative boundary or to settle a dispute between administrative officials. From the very start it was clear that a decision with regard to the "ownership" of the Hawar Islands was determinative for the international boundaries between two separate entities under international law. The potential concessionaires wanted to know to which capital they had to go in order to apply for a concession. Both parts of the crucial question I formulated earlier must, therefore, be answered in the negative. Already for these reasons the principle of uti possidetis juris is not applicable in the present case.

[pp. 250-251 S.O. Al–Khasawneh] 8. Some remarks on the uti possidetis juris principle are appropriate for two reasons: firstly, to those who doubt the reality of Qatari consent to the British decision or find that consent vitiated, the decision becomes nothing more than the uti possidetis juris principle in disguise. Hence an enquiry into the impact of the principle assumes practical relevance. Secondly, the implications of this principle, which seem to be passing through a new phase of mutation, are profound. Generally speaking, to yield too readily to its applicability would be inimical to other legally protected rights, e.g., the right of self–determination (although there is no danger of this in the present case) as well as to the very function of international courts which is not to declare, in the interests of preventing

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conflicts, pre–existing de facto territorial situations legal without regard to title and other relevant criterion, but to uphold justice by correcting illegalities where they occur.

9. Both Bahrain and Qatar were classified under British law not as colonies but as "protected States" or sometimes as "States in special treaty relations with His Majesty's Government". Such a formal classification notwithstanding, the British Government in fact exercised overwhelming control over the two sheikhdoms, not only in the sphere of international relations but also in domestic affairs. This control was derived from the various treaties with the two sheikhdoms and in addition from "custom, suffrage and acquiescence". However, regarding the pertinent question of territorial title, the British Government did not claim for themselves a right to alienate parts of the sheikhdoms' territories without the rulers' consent. This is clear from the Dubai/Sharjah arbitration70. Moreover, the British Government never acquired title in the various sheikhdoms of the Gulf including Bahrain and Qatar, unlike for example the Spanish Crown in Latin America, which had acquired sovereignty and title to territory. This, in itself, should lead us to conclude that the principle uti possidetis juris is inapplicable in this case.

10. In addition, in the Eritrea/Yemen Arbitral Award of 1998 the Tribunal had occasion to consider the argument that the uti possidetis juris principle applied and rejected that argument by one of the parties, noting that: "Added to these difficulties is the question of the intertemporal law and the question whether this doctrine of uti possidetis juris, at that time thought of as being essentially one applicable to Latin America, could properly be applied to interpret a juridical question arising in the Middle East shortly after the close of the First World War."71 I find that line of reasoning both persuasive, and by analogy, applicable, to the present situation, where the crystallization of the territorial claims took place before the principle had started to lose its essentially Latin–American character and to assume a more international applicability, although it is still very doubtful whether even now it has any applicability in the Middle East.

70 Dubai/Sharjah Border Arbitration, Award 1981, International Law Reports, Vol. 91, p. 567. 71 Eritrea/Yemen Arbitral Tribunal, Phase One, para. 99.

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[pp. 407-410 D.O. Torres Bernárdez] 428. ...Uti possidetis juris became a norm of international law of general application (that is, beyond the confines of relations between Spanish American Republics) only after the Second World War, to be more precise around the time of the general decolonization of the African Continent. The Eritrea–Yemen Arbitral Award of 1998 rejected the claim of uti possidetis by one of the Parties noting, inter alia, that: "Added to these difficulties is the question of the intertemporal law and the question whether this doctrine of uti possidetis, at that time thought of as being essentially one applicable to Latin America, could properly be applied to interpret a juridical question arising in the Middle East shortly after the close of the First World War." (Para. 99 of the Award.)

429. There is a generally accepted rule of law, including international law, according to which the judicial evaluation of title resulting from historical consolidation (namely by a process, a continuum, a succession of acts, facts or situations over a given span of time) should be made on the basis of the international law in force at the time when such title ostensibly arose (see, for example, Grisbadarna, Baie de Delagoa, Clipperton Island, Island of Palmas, Minquiers and Ecrehos, etc.). It is true that in the Island of Palmas case, Huber qualified that non– retroactive principle by adding "that the existence of the right ... its continued manifestation, shall follow the conditions required by the evolution of the law", but I do not see how it would be possible to conclude in the present case that the contemporary generalization of the uti possidetis juris of the 1960s could retroactively deprive either of the Parties of any territorial rights over the Hawar Islands when for both Parties those rights in rem already formed an established territorial order of things before the generalization of uti possidetis juris as a norm of general international law.

430. Non–retroactivity in the application of its norm is a well–established principle of customary international law and not only of the law of treaties. Retroactivity in the application of a norm of international law is admissible only where the norm itself is adopted with such an intention or where the interested parties are in agreement as to the retroactive applicability of the norm in their mutual relations. In the circumstances leading to the formulation of uti possidetis juris as a norm of general international law, I did not find anything in the State practice or opinio juris to suggest that the acceptance of uti possidetis juris as a norm of general application implied any intent to give the norm retroactive effect, so as to make it

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applicable also to any act or fact which took place or any situation which ceased to exist before the generalization of uti possidetis juris. Moreover, in the present case, Qatar rejects the application of uti possidetis juris in its relations with Bahrain. There is therefore no agreement between the Parties as to retroactive application of uti possidetis juris by the Court to the present case.

431. Having said that, I now come to the crux of the matter, namely to the substantive conditions which must be met for uti possidetis juris to apply to a specific case. Uti possidetis juris as a principle or norm of international law has two aspects in that it concerns the delimitation of boundaries (which is not particularly relevant in the present case) and the question of title to territory. For both aspects, there should exist a situation of succession which in my view (some legal writers think otherwise) should be related to decolonization in general international law. In any case, without an event entailing succession, uti possidetis juris is inapplicable as a principle or norm of general international law. Even when uti possidetis juris is invoked or applied by virtue of a particular rule (e.g., a binding treaty or agreement, established rules of an international organization, or even domestic constitutional provisions) there must be succession in international law. I do not see any such succession in international law in the present case. Bahrain and Qatar were subjects of international law long before 1971, participating as such in international relations and agreements, as well as making laws of their own, formulating international claims and assuming international obligations.

432. It must also be noted that a situation of succession may concern various matters (treaties, debts, nationality, territorial questions, etc.) and that the rules of international law applicable to those matters are by no means the same, let alone identical. For example, the 1978 Vienna Convention on Succession of States in Respect of Treaties contains no provisions concerning the operation in that field of uti possidetis juris. On the contrary, the Convention excludes "boundary regimes" and "other territorial regimes" (Arts. 11 and 12), which are not affected as such by a "succession of States", a term defined not in general but only for the purposes of the said Convention as meaning the replacement of one State by another in the responsibility for the international relations of territory (Art. 2, para. 1(b), of the Convention). I do not see any issue in the case before the Court concerning a situation of succession in respect of treaties. These questions are not part of the subject of the dispute before the Court.

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433. If uti possidetis juris is invoked, as it has been by Bahrain, the succession must concern, as indicated above, either "delimitation of boundaries" or "title to territory". There is no other aspect of uti possidetis juris. The Court certainly has before it a case concerning "title to territory". There can be no question of this. Nor can there be any confusion between "succession in respect of treaties" and "succession in respect of title to territory. Under uti possidetis juris, as a principle or norm of general international law, the question of succession in respect of title to territory depends on two cumulative legal requirements: (1) the existence of an original international law title of a predecessor State in the territory or territories concerned on the date of the succession; and (2) the existence of two or more successor States which themselves assume, after the succession date, the status of "successors" to the predecessor State (sovereignty is involved here; succession between States is by no means equivalent to succession between human beings). In the present case neither of these two indispensable legal requirements is satisfied.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002 [pp. 521-522 S.O. Mbaye] 76. I wish to return once more to the question of the respect for colonial boundaries.

77. As has already been said, the countries of Africa, meeting in Cairo in 1964, adopted resolution AGH/Res.16 (1), under which : « all Member States [of the Organization of African Unity] pledge themselves to respect the frontiers existing on their achievement of national independence

78. The Parties agreed that this principle, which they called uti possidetis juris, was applicable to the present case. The Court did not see fit to have recourse to it. I regret that. This principle clearly means that Nigeria could not challenge today a boundary which existed for 47 years before its independence and which Nigeria itself unequivocally accepted as the boundary between its territory and that of Cameroon from 1960 to 1977. If one were not to accept this, what would be the purpose of the principle of respect of colonial boundaries ? If we refer to paragraphs 19 to 26 of the Court’s Judgment in the

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Frontier Dispute case, we can clearly see the importance attached by Africa, and by the Court too, to the principle. The Chamber stated : «Although there is no need, for the purposes of the present case, to show that this is a firmly established principle of international law where decolonization is concerned, the Chamber nonetheless wishes to emphasize its general scope, in view of its exceptional importance for the African continent and for the two Parties » (I.C.J. Reports 1986, p. 565, para. 20) ; and continued: «It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fraticidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.» (Ibid.)

79. When African States speak of uti possidetis juris, they employ the phrase « intangibility of colonial frontiers ». These words best reflect their common view. Of course, it would be unreasonable to conclude from this that frontiers are immutable. They can certainly be modified, not by invoking their technical defects but only in accordance with the rules of international law – in other words, by mutual agreement or by judicial decisions. In the latter case, the forum seised of the matter must confine itself to interpreting the instruments determining the boundary and must not rewrite them. In other words, it may remedy material defects but not alleged legal errors. Two cases illustrate this point. The case of the mouth of the Ebeji (a material defect) and the case of the «Nigerian » villages of Lake Chad (an alleged legal error). This second case would involve a legal rectification. The same applies to the historical consolidation invoked by Nigeria in respect of Bakassi. The Court does not have a power of rectification. A court cannot change a clear provision.That would exceed its power.

Case Concerning the Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005

[pp. 108-110] 23. Under Article 6 of the Special Agreement ("Applicable Law"), the rules and principles of international law applicable to the present dispute include "the

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principle of State succession to the boundaries inherited from colonization, that is to say, the intangibility of those boundaries". It follows from the wording of this provision and from the arguments of the Parties that they are in agreement on the relevance of the principle of uti possidetis juris for the purposes of determining their common border. As the Chamber formed in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) had occasion to state, the existence of this principle has been recognized on several occasions in the African context (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 565, para. 20); it was recognized again recently, in Article 4 (b) of the Constitutive Act of the African Union, of which Benin and Niger are members, signed in Lomé on 11 July 2000. That Chamber stated that, according to the principle in question, "pre-eminence [is] accorded to legal title over effective possession as a basis of sovereignty" and that its essence lies "in its primary aim of securing respect for the territorial boundaries at the moment

when

independence

is

achieved",

including former administrative

delimitations established during the colonial period that became international frontiers (ibid., pp. 586-587, para. 63, and p. 566, para. 23).

24. On the basis of the principle of uti possidetis juris, the present Chamber must thus seek to determine, in the case before it, the boundary that was inherited from the French administration. The Parties agree that the dates to be taken into account for this purpose are those of their respective independence, namely 1 and 3 August 1960; the Chamber would observe that there was no change in the frontier between these two very close dates.

25. The Parties have nonetheless sometimes expressed differing opinions regarding certain aspects of the application of the uti possidetis juris principle in the present case. Firstly, Niger maintains that this principle does not preclude the Chamber from taking account, where appropriate, of the physical realities subsequent to independence, in order to ensure that the Judgment will have meaningful and practical significance between the Parties. Consequently, in requesting the Chamber to indicate to which State each of the islands in the River Niger belongs, by reference to the line of deepest

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soundings at the date of independence, Niger asks it to consider for this purpose only those islands that exist at the present time. Benin, for its part, argues that, if the uti possidetis juris principle is to be applied strictly, it would be unacceptable to refer to the present situation in order to determine to which Party the islands belonged at the date of independence. The Chamber observes that, in any event, the Parties agree that the course of their common boundary should be determined, in accordance with the uti possidetis juris principle, by reference to the physical situation to which French colonial law was applied, as that situation existed at the dates of independence. However, the consequences of such a course on the ground, particularly with regard to the question of to which Party the islands in the River Niger belong, must be assessed in relation to present-day physical realities and, in carrying out the task assigned to it under Article 2 of the Special Agreement, the Chamber cannot disregard the possible appearance or disappearance of certain islands in the stretch concerned.

26. Secondly, Benin and Niger have put forward differing views with respect to the documents or maps on which the Chamber should base its determination of their common boundary. In support of its delimitation claims, Niger relies on certain documents and maps that are posterior to the dates of independence, not only to demonstrate current physical realities but also to establish the situation existing in the colonial era. According to Niger, that situation must be determined on the basis of the studies conducted closest in time to the Parties’ accession to independence, without being confined to those conducted prior to the dates of independence. Benin considers, to the contrary, that the Chamber should base its decision on research and documents prior to the critical date. The Chamber cannot exclude a priori the possibility that maps, research or other documents subsequent to that date may be relevant in order to establish, in application of the uti possidetis juris principle, the situation that existed at the time. In any event, since the effect of the uti possidetis principle is to freeze the territorial title (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 568, para. 29), the examination of documents

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posterior to independence cannot lead to any modification of the "photograph of the territory" at the critical date unless, of course, such documents clearly express the Parties’ agreement to such a change.

27. Thirdly, the Parties have discussed the legal value, in the light of the uti possidetis juris principle, of post-colonial effectivités. The Chamber notes that both Parties have on occasion sought to confirm the legal title which they claim by relying on acts whereby their authorities allegedly exercised sovereignty over the disputed territories after 1960; such effectivités have been invoked by Niger inter alia in respect of activities relating to the River Niger and its islands, and by Benin in respect of activities relating to the right bank of the River Mekrou. Such an approach should not necessarily be excluded. As stated by the Chamber formed in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:Nicaragua intervening), it is possible to "have regard ..., in certain instances, to documentary evidence of postindependence effectivités when ... they afford indications in respect of the ... uti possidetis juris boundary, providing a relationship exists between the effectivités concerned and the determination of that boundary" (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 399, para. 62).

[pp. 120] 45. The Chamber is firstly asked, in accordance with Article 2, paragraphs (a) and (b), of the Special Agreement, to determine the course of the boundary in the sector of the River Niger and then to specify to which Party each of the islands in the river belongs. As the Chamber has recalled (see paragraph 23 above), the Parties have expressly asked it to carry out its task on the basis of, in particular, the principle of the succession of States to the frontiers inherited from colonialism, namely the principle of the intangibility of such frontiers, also known as the principle of uti possidetis juris.

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46. In the present case these territorial boundaries were no more than delimitations between different administrative divisions or colonies subject to the same colonial authority. Only at the moment of independence, also called the "critical date", did these boundaries become international frontiers. Until that time the matter of delimitation was governed by French colonial law, known as "droit d’outre mer". As noted above (see paragraph 28), in the application of the principle of uti possidetis juris, French law does not play a role in itself but only as one factual element among others, or as evidence indicative of what has been called the "colonial heritage" at the critical date. Since the Parties achieved independence virtually simultaneously (see paragraph 20 above), the period between 1 and 3 August 1960 can be considered as the critical date.

47. In accordance with the approach of the Chamber in the Frontier Dispute (Burkina Faso/Republic of Mali) case, the Chamber will first consider the various regulative or administrative acts invoked by the Parties; thus, pre-eminence is to be accorded to legal title over effective possession as a basis of sovereignty (I.C.J. Reports 1986, pp. 586-587, para. 63).

[pp. 126-127] 68. The Chamber will now turn to the acts invoked by Niger as evidence of its legal title, namely the arrêtés issued by the Governor-General of the AOF on 8 December 1934 and 27 October 1938 reorganizing the internal administrative structure of the colony of Dahomey and containing a description of the boundaries of the various cercles. In both arrêtés the north-west boundary of the cercle of Kandi is described as "the course of the Niger as far as its confluence with the Mekrou".

69. According to Niger these arrêtés are the formal and authoritative confirmation that the boundary between Dahomey and the neighbouring colony of Niger was located in the watercourse itself, as had already been indicated in the letter of the Minister for the Colonies dated 7 September 1901. The arrêtés thus provide sufficient evidence of Niger’s title, even if the title itself is not explicitly laid down in a prior regulative or administrative act.

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70. Benin contends that these arrêtés were merely of an intra-colonial character and were not intended to determine the boundary of Dahomey with another colony. Benin further argues that the wording used is imprecise and does not exclude a frontier on the left bank of the river.

71. The Chamber first notes that both arrêtés were issued by the Governor-General, who was the authority competent to establish, delimit and reorganize the cercles of colonies. In so far as they describe the boundaries of these cercles with the neighbouring colonies which also came under his authority, the arrêtés do not have an exclusive internal character but may also be relied upon in intercolonial relations. Consequently it can be concluded on the basis of these arrêtés that the course of the River Niger constituted the intercolonial boundary.

72. The Chamber is unable, however, to deduce therefrom that that boundary was situated in the river, whether at the thalweg or the median line. The Chamber notes in this regard that the terminology used in the arrêtés is identical to that of the 1901 letter and is just as imprecise. The notion of the "course of the river" covers a range of possibilities: a boundary on either river bank or a boundary somewhere within the river.

73. Even if, as Niger contends, a certain practice had evolved on the basis of a boundary within the river (see paragraph 83 below), that practice was not endorsed by the arrêtés, although it may be assumed that the Governor-General would have been aware of the practice, which had already been in existence for a considerable period of time. In the Chamber’s view, it is evident that the term, "the course of the Niger", was not intended to indicate the precise location of the boundary but merely to indicate the separation line between the two colonies.

74. The Chamber thus finds that the 1934 and 1938 arrêtés do not establish a boundary in the river; it cannot therefore sustain Niger’s claims as to title.

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[pp. 148-149] 140. … further to what has already been said (see paragraph 134) in regard to the power of the Governor-General to fix the boundaries of the cercles and, hence, to determine those of colonies, the Chamber would emphasize that the uti possidetis juris principle requires not only that reliance be placed on existing legal titles, but also that account be taken of the manner in which those titles were interpreted and applied by the competent public authorities of the colonial Power, in particular in the exercise of their law-making power. The Chamber is bound to note that the administrative instruments promulgated after 1927 were never the subject of any challenge before the competent courts, and that there is no evidence that the colonial administration was ever criticized at the time for having improperly departed from the line resulting from the 1907 decree. It is not for the Chamber to substitute itself for a domestic court (in this case, the French administrative courts) by carrying out its own review of the legality of the instruments in question in light of the 1907 decree, nor to speculate on what the French courts might have decided had they been seised of the matter. The fact is that they were not so seised and that there is nothing to suggest that, in the decisions taken by them after 1927, the administrative authorities either manifestly exceeded their powers or acted in manifest breach of the applicable rules.

141. It follows from all of the foregoing that, at least from 1927 onwards, the competent administrative authorities regarded the course of the Mekrou as the intercolonial boundary separating Dahomey from Niger, that those authorities reflected that boundary in the successive instruments promulgated by them after 1927, some of which expressly indicated that boundary, whilst others necessarily implied it, and that this was the state of the law at the dates of independence in August 1960. In these circumstances, it is unnecessary to look for any effectivités in order to apply the uti possidetis principle, since effectivités can only be of interest in a case in order to complete or make good doubtful or absent legal titles, but can never prevail over titles with which they are at variance. The Chamber notes moreover, ex abundanti, that the effectivités relied on by the Parties in the sector in question are relatively weak.

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2. LAW OF THE SEA *

2.1. General Questions

2.2. Determination of Maritime Boundaries

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[pp. 91-93] 169. 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.

170. More to the north, however, where the coasts of the two States are no longer opposite to each other but are rather comparable to adjacent coasts, the delimitation to be carried out will be one between the continental shelf and exclusive economic zone belonging to each of the Parties, areas in which States have only sovereign rights and functional jurisdiction. Thus both Parties have differentiated between a southern and a northern sector.

[pp. 93-94] 173. 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

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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 ... objects 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", as was stated by the Chamber of the Court in the Gulf of Maine case (I.C.J. Reports 1984, p. 327, para. 194). In that case, the Chamber was asked to draw a single line which would delimit both the continental shelf and the superjacent water column.

174. 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 superjacent waters and 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.

175. The Parties agree that the provisions of Article 15 of the 1982 Convention on the Law of the Sea, headed "Delimitation of the territorial sea between States with opposite or adjacent coasts", are part of customary law. This Article provides: "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 baselines 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."

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176. 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.

177. 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 basepoints which in their view could be used by the Court for the determination of the maritime boundary.

[pp. 96-97] 183. With regard to Bahrain's claim that it is entitled to the status of archipelagic State in the sense of the 1982 Convention on the Law of the Sea, the Court observes that Bahrain has not made this claim one of its formal submissions and that the Court is therefore not requested to take a position on this issue. What the Court, however, is called upon to do is to draw a single maritime boundary in accordance with international law. The Court can carry out this delimitation only by applying those rules and principles of customary law which are pertinent under the prevailing circumstances. The Judgment of the Court will have binding force between the Parties, in accordance with Article 59 of the Statute of the Court, and consequently

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could not be put in issue by the unilateral action of either of the Parties, and in particular, by any decision of Bahrain to declare itself an archipelagic State.

184. The Court, therefore, will accordingly now turn to the determination of the relevant coasts from which the breadth of the territorial seas of the Parties is measured. In this respect the Court recalls that under the applicable rules of international law the normal baseline for measuring this breadth is the low–water line along the coast (Art. 5, 1982 Convention on the Law of the Sea).

185. 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). 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.

[pp. 100-103] 200. Both Parties agree that Fasht ad Dibal is a low–tide elevation. Whereas Qatar maintains – just as it did with regard to Qit'at Jaradah – that Fasht ad Dibal as a low–tide elevation cannot be appropriated, Bahrain contends that low–tide elevations by their very nature are territory, and therefore can be appropriated in accordance with the criteria which pertain to the acquisition of territory. "Whatever their location, low–tide elevations are always subject to the law which governs the acquisition and preservation of territorial sovereignty, with its subtle dialectic of title and effectivités."

201. 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

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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). Under these provisions, the low–water line of a low–tide elevation may be used as the baseline for measuring the breadth of the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. If a low–tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea, it has no territorial sea of its own. The above–mentioned Conventions further provide that straight baselines shall not be drawn to and from low–tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them (1958 Convention, paragraph 3 of Article 4; 1982 Convention, paragraph 4 of Article 7). According to Bahrain this is the case with regard to all low–tide elevations which are relevant in the present case for the delimitation process.

202. 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.

203. In Bahrain's view, however, it depends upon the effectivités presented by the two coastal States which of them has a superior title to the low–tide elevation in question and is therefore entitled to exercise the right attributed by the relevant provisions of the law of the sea, just as in the case of islands which are situated within the limits of the breadth of the territorial sea of more than one State.

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Bahrain contends that it has submitted sufficient evidence of the display of sovereign authority over all the low–tide elevations situated in the sea between Bahrain's main islands and the coast of the Qatar peninsula.

204. 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 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.

205. 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.

206. 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

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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.

207. 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 Conventions 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.

208. 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 low–tide 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 basepoints for straight baselines.

209. The Court, consequently, is of the view that in the present case there is no ground for recognizing the right of Bahrain to use as a baseline the low–water line of those low–tide elevations which are situated in the zone of overlapping claims, or for recognizing Qatar as having such a right. The Court accordingly concludes that for the purposes of drawing the equidistance line, such low–tide elevations must be disregarded.

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[pp. 103-104] 212. 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.

213. 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.

214. 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.

215. 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.

[pp. 104-109] 217. The Court now turns to the question of whether there are special circumstances which make it necessary to adjust the equidistance line as provisionally

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drawn in order to obtain an equitable result in relation to this part of the single maritime boundary to be fixed (see the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 60, para. 50, p. 62, para. 54).

218. The first question to be considered is that of Fasht al Azm. The Court considers that if Fasht al Azm were to be regarded as part of the island of Sitrah, it would not be appropriate to take the equidistance line as the maritime boundary since, in view of the fact that less than 20 per cent of the surface of this island is permanently above water, this would place the boundary disproportionately close to Qatar's mainland coast (see sketch–maps Nos. 3 and 5 below). If, on the other hand, Fasht al Azm were to be regarded as a low–tide elevation, the equidistance line would brush Fasht al Azm, and for this reason would also be an inappropriate delimitation line (see sketch–maps Nos. 3 and 6 below). The Court considers that, on either hypothesis, there are thus special circumstances which justify choosing a delimitation line passing between Fasht al Azm and Qit'at ash Shajarah.

219. The next question to be considered is that of Qit'at Jaradah. The Court observes that Qit'at Jaradah is a very small island, uninhabited and without any vegetation. This tiny island, which – as the Court has determined (see paragraph 197 above) – comes under Bahraini sovereignty, is situated about midway between the main island of Bahrain and the Qatar peninsula. Consequently, if its low–water line were to be used for determining a basepoint in the construction of the equidistance line, and this line taken as the delimitation line, a disproportionate effect would be given to an insignificant maritime feature (see sketch–map Nos. 3, 5 and 6 below). 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.

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220. The Court observed earlier (see paragraph 216 above) that, since it did not determine whether Fasht al Azm is part of Sitrah island or a separate low–tide elevation, it is necessary to draw provisionally two equidistance lines. If no effect is given to Qit'at Jaradah and in the event that Fasht al Azm is considered to be part of Sitrah island, the equidistance line thus adjusted cuts through Fasht ad Dibal leaving the greater part of it on the Qatari side. If, however, Fasht al Azm is seen as a low–tide elevation, the adjusted equidistance line runs west of Fasht ad Dibal. In view of the fact that under both hypotheses, Fasht ad Dibal is largely or totally on the Qatari side of the adjusted equidistance line, the Court considers it appropriate to draw the boundary line between Qit'at Jaradah and Fasht ad Dibal. As Fasht ad Dibal thus is situated in the territorial sea of Qatar, it falls for that reason under the sovereignty of that State.

221. The Court is now in a position to determine the course of that part of the single maritime boundary which will delimit the territorial seas of the Parties. Before doing so the Court notes, however, that it cannot fix the boundary's southern–most point, since its definitive location is dependent upon the limits of the respective maritime zones of Saudi Arabia and of the Parties. The Court also considers it appropriate, in accordance with common practice, to simplify what would otherwise be a very complex delimitation line in the region of the Hawar Islands.

[pp. 109-110] 223. The Court notes that, because of the line thus adopted, Qatar's maritime zones situated to the south of the Hawar Islands and those situated to the north of those islands are connected only by the channel separating the Hawar Islands from the peninsula. This channel is narrow and shallow, and little suited to navigation. The Court therefore emphasizes that, as Bahrain is not entitled to apply the method of straight baselines (see paragraph 215 above), the waters lying between the Hawar Islands and the other Bahraini islands are not internal waters of Bahrain, but the territorial sea of that State. Consequently, Qatari vessels, like those of all other States, shall enjoy in these waters the right of innocent passage accorded by customary

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international law. In the same way, Bahraini vessels, like those of all other States, enjoy this right of innocent passage in the territorial sea of Qatar.

[pp. 114-115] 245. In drawing the line which delimits the continental shelves and exclusive economic zones of the Parties the Court cannot ignore the location of Fasht al Jarim, a sizeable maritime feature partly situated in the territorial sea of Bahrain. The Parties have expressed differing views on the legal nature of this maritime feature but, in any event, given the feature's location, its low–water line may be used as the baseline from which the breadth not only of the territorial sea, but also of the continental shelf and the exclusive economic zone, is measured.

246. The Court recalls that in the Libya/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" (I.C.J. Reports 1985, p. 48, para. 64).

247. The Court further recalls that in the northern sector the coasts of the Parties are comparable to adjacent coasts abutting on the same maritime areas extending seawards into the Gulf. The northern coasts of the territories belonging to the Parties are not markedly different in character or extent; both are flat and have a very gentle slope. The only noticeable element is Fasht al Jarim as a remote projection of Bahrain's coastline in the Gulf area, which, if given full effect, would "distort the boundary and have disproportionate effects" (Continental Shelf case (France/United Kingdom), United Nations, Reports of International Arbitral Awards, Vol. XVIII, p. 114, para. 244).

248. 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

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Fasht al Jarim should have no effect in determining the boundary line in the northern sector.

249. The Court accordingly decides that the single maritime boundary in this sector shall be formed in the first place by a line which, from a point situated to the north– west of Fasht ad Dibal, shall meet the equidistance line as adjusted to take account of the absence of effect given to Fasht al Jarim. The boundary shall then follow this adjusted equidistance line until it meets the delimitation line between the respective maritime zones of Iran on the one hand and of Bahrain and Qatar on the other.

[pp. 126-127 S.O. Oda] 12. I note, to my surprise, that while the phrase "single maritime boundary" is not mentioned in Bahrain's submissions, it is repeatedly used in the Judgment. I also find it surprising that the Court proceeds to pronounce a decision on the "single maritime boundary" despite the fact that both Qatar and Bahrain presented in their submissions individual claims to a boundary line. If the word "single" is used in connection with the "maritime boundary" in the Court's jurisprudence, this is only because it was generally thought that the boundary to be drawn for the continental shelf and for the exclusive economic zone should be the same, at least within 200 miles of the coast. The idea of a "single" boundary (or identical boundary) for both the continental shelf and the exclusive economic zone was born in the course of the 1982 case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). The Judgment in that case was rendered by the Court on the eve of the adoption in December 1982 of the United Nations Convention on the Law of the Sea at UNCLOS III, in which the new concept of the exclusive economic zone was provided for for the first time (see para. 35 of this opinion). The term "single" boundary has come to mean an identical boundary, being a single line for the two different régimes of the continental shelf and the exclusive economic zone, and was referred to in this sense in the 1984 case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area, the 1985 case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), and the 1993 case concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen. The term "single" boundary does not mean anything else, despite the Court's use of this word in a different sense in the present Judgment.

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[pp. 128-130 S.O. Oda] 15. ... A review of the history of oil development in the Gulf and the successive bilateral agreements concluded among the Gulf States over the last several decades leads me to submit that Qatar and Bahrain were contemplating the delimitation between themselves of the sea areas for oil exploitation. It is patently clear that the two States never thought that they would be engaged in a dispute concerning the delimitation of their respective territorial seas. That is, I believe, the reason why the Parties employ the expression "the maritime boundary" (Bahrain) or "single maritime boundary" (Qatar), but never the boundary of the territorial sea, in their respective submissions. To repeat, both Qatar and Bahrain talk about the "maritime boundary" or "single maritime boundary" because their concern does not lie with the delimitation of the territorial sea. The Court is not correct in attempting to apply the rules and principles governing the boundary of the territorial sea in the southern part of the region at issue.

16. Even if, for the sake of argument, the "southern sector" is to be delimited according to the rules and principles governing the boundary of the territorial sea, as the Court suggests, it appears to me that the Court is also mistaken in its interpretation of those rules and principles. The Court recommends that the boundary of the territorial sea (in the southern sector) should be drawn in accordance with Article 15 of the 1982 United Nations Convention on the Law of the Sea (which is quoted in full in the Judgment at paragraph 175 and is virtually identical to Article 12, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone), which is "to be regarded as having a customary character" (Judgment, para. 176).

17. The Court states that Article 15 of the 1982 United Nations Convention "is often referred to as the 'equidistance/special circumstances' rule" (Judgment, para. 176), and also that "the equidistance/special circumstances rule, which is applicable in particular to the delimitation of the territorial sea, and the equitable principles/relevant circumstances rule, as it has been developed since 1958 in case–law and State practice with regard to the delimitation of the continental shelf and the exclusive economic zone, are closely interrelated." (Judgment, para. 231.) The fact of the matter is that the equidistance/special circumstances rule, so named by certain scholars after the 1958 Convention on the Continental Shelf, has been referred to mainly in connection with the delimitation of the continental shelf but, as far as I am aware, not in connection with the delimitation of the territorial sea. I wish to make this point because the

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Court, in this connection as well, appears to me to have confused the rules applicable to the boundary of the territorial sea with those applicable to the boundary of the continental shelf.

18. For the territorial sea, the principle is that the "median line" is to be used, although there may be exceptions to this principle where necessary because of historic title or other special circumstances. This rule is manifestly not the same as the one applicable to the boundary of the continental shelf, as will be explained below (see paras. 31 to 34 of this opinion). The Court is not correct in stating, in its interpretation of Article 15 of the 1982 United Nations Convention, that "[t]he 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" (Judgment, para. 176). It may be pertinent in this respect to note that the meaning of the phrase "special circumstances" in the case of the territorial sea was explained over 40 years ago at the 1958 United Nations Conference on the Law of the Sea by the United Kingdom's delegate to the Conference (Sir Gerald Fitzmaurice), who proposed the wording: "[S]pecial circumstances did exist which, for reasons of equity or because of the configuration of a particular coast, might make it difficult to accept the true median line as the actual line of delimitation between two territorial seas. There might be a navigation channel, for instance, which was not in the middle of a strait but to one side of it, or went from one side to the other; or the situation might be complicated by small islands. [The] delegation therefore felt that it would be too rigid to specify that the median line must be adhered to regardless of special circumstances." (United Nations Conference on the Law of the Sea, Official Records, Vol. III, p. 189; emphasis added.) The "true median line" is a general rule; this rule does not apply when historic title or other special circumstances so necessitate. And, in my view, this rule may have been realistic in 1958 when the "true median line" could, in principle, be objectively drawn, within the then narrowly defined territorial seas, by the application of mathematical or geometrical means.

[pp. 133-135 S.O. Oda] 25. Qatar and Bahrain have each requested the Court in their submissions to accept their respective claims to maritime boundary. Those claims are, of course, quite different. The Court, in dismissing the individual claims of the Parties, should have indicated the guidelines for drawing the maritime boundary in the disputed sea areas. The Court, however, has decided to demarcate a boundary in the southern part of the region in

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accordance with the rules of the boundary of the territorial sea and in the northern part in accordance with the rules pertaining to the boundary of the continental shelf. I would like to point out two things in this respect. First, the maritime boundary – either of the territorial sea or of the continental shelf – cannot be determined with geometrical or mathematical precision. (The only exception is where the median line for the territorial sea lies within a very narrow band (3 miles); see para. 18 of this opinion.) A boundary may be drawn within the framework of international law but taking into account the variety of special or relevant circumstances and with due regard for equitable considerations. The question whether certain marine features constitute special circumstances is not a matter for legal determination.

26. I recall that in my separate opinion attached to the Judgment in the 1993 case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen I suggested that there is no such thing as a single equitable line of delimitation. I quote just a few lines from my separate opinion in that case: "In reality the delimitation of a line ... may vary in an infinite number of ways within a certain range, and the choosing of one of these variations after consideration of 'special circumstances', 'relevant circumstances' or 'factors to be taken into account' etc., does not belong to the function of law. No line thus drawn can be illegal or contrary to rules of international law." (I.C.J. Reports 1993, p. 111, para. 76.) Equity exists in infinite variety and the determination of what is "equitable" depends on who is making that determination in a particular case. There is no definite criterion to apply. Seen from a legal point of view, there is not in the present case one definite, determinative line of delimitation that should be adopted.

27. I am not suggesting that the Court should leave aside the question of the criterion to apply but simply that the Court should not, in its Judgment, go beyond stating what elements should be taken into account in order to achieve an equitable solution and how those elements should be assessed. The decisive factor is not the legal principles (which are defined with unquestionable precision); the important point here is the Court's understanding of what is most suitable to the consideration of equity and how that understanding has led it to make a choice from among an infinite number of possibilities. In my view, the Court should always exercise moderation and self–restraint in its decisions on maritime boundaries.

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The line adopted by the Court cannot therefore be defined, with legal precision, by reference to any legal standard. The reason for my concern is that, in spite of the fact that choosing a line of delimitation in the case is a relative matter, the Court, in paragraph 252 (6) of the Judgment, states that it "[d]ecides that the single maritime boundary ... shall be drawn [in the manner described in the Judgment]". We must remain aware that the line drawn by the Court is no more than the one considered by the Court to be the most appropriate in order to achieve an equitable solution to the present dispute concerning the maritime boundary. I reiterate, the line described by the Court is not one decided through the application of legal objectivity and precision.

[pp. 195-196 J.D.O. Bedjaoui, Ranjeva and Koroma] 167. On examination, it is apparent that the course of the single maritime boundary, whilst constructed within the terms of the formula, does not entirely satisfy the structural balance established in that compromissory clause. Recourse to the technique of enumerating the areas to be delimited has a dual aim: first, to specify individually the areas for delimitation and, secondly, to emphasize the distinct nature of each type of area in relation to the others, since each possesses its own coherent character in law. The Judgment is correct in speaking of a "single maritime boundary that serves other purposes as well". The single maritime boundary is not a composite line but a multifunctional one; that is to say, it serves simultaneously as a line of demarcation for each specific category of area to be delimited throughout its length. It follows that the single boundary line must not have the effect of changing the nature of the areas divided by it, or of affecting their legal status. It must cumulatively and simultaneously delimit each area, independently of the régime governing the maritime zone through which it passes, without any special preference or diminution in favour of a particular régime or zone. This is a condition based not simply on considerations of theory or expediency. Maximalist tendencies can only be counter–productive, given the requirements which governed the general conditions of equilibrium of the Montego Bay Convention: a line resulting in the application to that zone of the sole régimes of the territorial sea and the contiguous zone would have no chance of being generally accepted by States. Conversely, a "free–for–all" in regard to the régimes governing these maritime areas would run counter to the security considerations which, inter alia, underpinned the projection of territorial jurisdiction into the sea adjacent to coastlines. Thus, and by analogy with the test of equity which the Court applies in all maritime delimitations, the specific enumeration of areas in the Bahraini formula required the

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Court to ensure that the result it achieved was coherent over the entire maritime area delimited.

[p. 203 J.D.O. Bedjaoui, Ranjeva and Koroma] 186. Examination of the respective travaux préparatoires for the Geneva instruments and for the Third United Nations Conference on the Law of the Sea discloses a change in approach. The International Law Commission seems to have demonstrated a preference for having baselines serve both to fix the boundary with the high seas and also to fix the equidistance line. But this stance by the Commission was not confirmed at the Third United Nations Conference on the Law of the Sea. Within negotiating Group VII, which dealt with the question of the delimitation of the continental shelf and the exclusive economic zone, the problem of basepoints was a matter on which the delegations were unable to agree: some favoured adoption of the equidistance line, others an equitable solution. The former wished not only purely and simply to extend application of the normal baseline to all areas, but also to accord it this dual function; the merit of this solution lay in its mathematical simplicity. For the latter group, on the other hand, the search for an equitable solution did not require from the outset the adoption of criteria that were a source of inequity, or the automatic application of one principle or method in particular. In some cases this approach would have such distorting effects that there could be no question of raising it to the status of an absolute rule. To do so would be to create an obstacle to the conclusion of delimitation agreements between neighbouring States. The disagreement on this point, both within negotiating Group VII and within the Conference itself, calls into question the proposals and interpretations espoused by the International Law Commission in 1953 and 1956. In conclusion, it is not established that in law baselines serve both for purposes of delimitation and for the fixing of the external boundaries of maritime areas.

[p. 205 J.D.O. Bedjaoui, Ranjeva and Koroma] 190. Contrary to what the Judgment appears to suggest, the systematic use of basepoints and lines to calculate the extent of the continental shelf and the exclusive economic zone, and to fix the external boundaries of those areas, is not prescribed by law, or by the Court's case law. The final solution is based on a specific appreciation of the factual circumstances, which courts assess at their discretion with the assistance of a minimum of mathematical apparatus and of a sense of equity.

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191. In a delimitation of the territorial sea, this sense of equity is also a requirement of law. We can only criticize, and most particularly so in the present case, the interpretation which the Judgment gives to the "equidistance/special circumstances" rule, which is the norm applicable here.

[p. 207 J.D.O. Bedjaoui, Ranjeva and Koroma] 193. Following the award of the Hawar Islands, and above all of Qit'at Jaradah, to Bahrain and, to a lesser degree, of Janan to Qatar, the Court, given the narrowness of the delimited area was bound to ask itself whether the choice of the traditional basepoints was an equitable one. Grounds of law are in this case opposed by equity. Thus, in giving effect to islets or features located at a greater distance from the main island of Bahrain than the Hawar Islands are from Qatar, the Judgment failed to take account of any element other than those relating to title. The test of equitableness used to adjust the single line was applied by reference to basepoints which had not first been examined to ensure that their choice was equitable. In the event, the final choice of basepoints resulted in the equidistance line being located too far to the west, because of the exaggerated effects accorded to tiny, unimportant features. The drawing of the provisional equidistance line on the basis of the points chosen here, namely what are called "maritime features" or "les formations maritimes", had the effect of distorting the general direction of the coastline. It is surely curious that the sea should be dominated not by terra firma but by minor maritime features, precisely lacking firm foundations. If the principle of the pre–eminence of terra firma over the sea had been respected, the direct result would have been a baseline which faithfully followed the coastline, and an equidistance line which respected the topography of the land and its coastlines.

[pp. 217-218 Decl. Vereshchetin] 2. … the Court has opted to found its Judgment purely on the presumed consent by the Rulers of Qatar and Bahrain to refer their dispute, which originated in the mid–1930s, to the British Government. Thus the Judgment of the Court on sovereignty over the Hawar Islands rests plainly and simply on the decision taken by the British Government in 1939. The Judgment states that the decision was binding at the time it was taken and "continued to be binding on [Bahrain and Qatar] after 1971, when they ceased to be British protected States" (para. 139 of the Judgment).

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3. This characterization by the Court of the 1939 British decision implies that it was and remains a sort of legally binding third–party settlement of a territorial dispute between two sovereign States. Of necessity, this assumption must also imply that the two States under British protection at the relevant time could freely express their sovereign will to be legally bound by the British decision. They must actually, in one form or another, have made their commitments to be legally bound by this decision. In turn, the British authorities which rendered the decision must be presumed to be a neutral and impartial "third party", acting at the request of the Parties in dispute.

4. To assess the real nature of the presumed "agreement" between Qatar and Bahrain to the effect "that the issue [of sovereignty over the Hawar Islands] would be decided by 'His Majesty's Government'" (para. 114 of the Judgment) and accordingly to assess the nature and validity of the British decision, it would be pertinent to look at the criteria developed in the Institut de droit international, which for a number of years studied the topic of the distinction between international texts with or without legal import. The Institute could not come to any definitive conclusions. Nevertheless, it is interesting to note that its Rapporteur, Professor M. Virally, in the light of the debates there, in 1982 concluded, inter alia, that: "The legal or purely political character of a commitment set forth in an international text of uncertain character depends upon the intention of the parties as may be established by the usual rules of interpretation, including an examination of the terms used to express such intention, the circumstances in which the text was adopted and the subsequent behaviour of the parties." (Annuaire de l'Institut de droit international, 1992, Tableau des résolutions adoptées (1957–1991), p. 159.) (Emphasis added.)

5. With reference to the above standards of interpretation, one inevitably sees that the circumstances in which the undertakings by the Rulers of Qatar and Bahrain were assumed were to say the very least not conducive to the genuinely free expression of will and the free choice of a third party: the recourse to any other State but Britain, or to any international organ, being practically precluded by the terms of the "special relationship" existing between Britain and the "protected States".

6. The Court cannot ignore the historical context in which the "consent" was given.

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[pp. 219-220 Decl. Vereshchetin] 8. Certainly, legal characterization of the British involvement in the settlement of the dispute was not a matter of special consideration by the States concerned. For the British authorities it was a matter of course that they could act on their own authority. For Bahrain and Qatar the appeal to the British Government was not a choice, it was the only option, the single avenue open to them. It is regrettable that the Court, having placed complete reliance on the presumed consent by the Rulers of Qatar and Bahrain to be legally bound by the British decision, has not paid due attention to a very revealing document prepared by an official of the British Foreign Office, who in 1964 arrived at the following conclusion based on a thorough study of the history of the British decision: "Neither of the two Rulers was asked beforehand to promise his consent to the award, nor afterwards to give it. H.M.G. simply 'made' the award. Although it followed the form of an arbitration to some extent, it was imposed from above, and no question of its validity or otherwise was raised. It was quite simply a decision which was taken for practical purposes in order to clear the ground for oil concessions." (Reply of Bahrain, Vol. 2, Ann. 2, p. 4.)

9. As to another criterion for the assessment of international texts of uncertain character mentioned by the Rapporteur of the Institut de droit international – the subsequent behaviour of the Parties – the constant protests of the Ruler of Qatar against the British decision speak for themselves. When the British decision was taken it was immediately protested against by Qatar as "unjust and inequitable". It was termed by Qatar the "opinion" of the British Government on the matter and the request was made that "the question may be considered again and that enquiries may again be made into it". The Ruler of Qatar stated that he "reserve[d] for [himself his] rights to the Hawar Islands until the true position ha[d] become clear" (para. 134 of the Judgment).

10. The foregoing does not lead me to conclude that the 1939 British decision is "null and void" or that it has no impact at all on the present legal situation, as contended by Qatar in its pleadings before the Court. I merely wish to say that this decision cannot be viewed as a fully– fledged third–party legal settlement of the dispute; much less can it be mechanically treated by the Court as if it had the character of res judicata. The legal effect of this administrative decision of the former protecting Power (the principle of uti possidetis set aside) cannot be the same in the assessment of the International Court of Justice in 2001 as it could have been for

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the two "protected States" at the time of its adoption in 1939, in an absolutely different legal and political setting. Even with the assumptions and presumptions of the consent by the Rulers of Bahrain and Qatar, the Court did not necessarily have to lend its imprimatur to the British decision without looking into its substantive grounding in law. The so–called "Bahraini formula", although not specifically required to do so, did not exclude a review by the Court of the British decision.

11. The Court should have analysed more deeply not only the formal procedural aspects of the British decision but also, and especially, whether it was well founded in law, in other words, the substance of the decision, and should have rectified it if appropriate. By resorting to the traditional grounds of territorial attribution, some of which were also the grounds allegedly relied on by the British authorities, as evidenced by the Weightman Report, the Court could have verified and if necessary modified the 1939 British decision before lending its authority to it.

12. The subtle interplay of the principle of proximity, effectivités and original title (in the absence of one single clearly prevailing ground) might have led the Court either to confirm or reverse the British decision, or else to modify it in the manner proposed by a group of judges (see the joint dissenting opinion of Judges Bedjaoui, Ranjeva and Koroma). In spite of all the pitfalls and uncertainty involved, such an approach would have been much less subject to criticism than mere reliance on the administrative decision of the former "protecting Power".

[pp. 279-280 D.O. Torres Bernárdez] 55. Bahrain has been unable to submit to the Court any international or domestic instrument defining the State of Bahrain as "an archipelagic State" with the dimensions alleged in the current proceedings. Not a single one. In fact, it is asking the Court to make a declaration to that effect in the place of the State of Bahrain. For that purpose it invoked Part IV of the 1982 Convention on the Law of the Sea. Qatar is not a party to that Convention and does not recognized that Part of the said Convention as declaratory of customary international law. But Bahrain is a party to the 1982 Convention and has nevertheless not fulfilled the clear obligation set forth in Article 47, paragraph 4, of the Convention concerning the drawing of archipelagic baselines before the institution of the present proceedings, namely that:

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and/or other obligations of the archipelagic States provided for in other articles of Part IV of the 1982 Convention, obligations which were essential elements for the conventional agreement recorded in that Part.

56. Thus, even if Part IV of the 1982 Convention were already customary international law, the Bahraini archipelagic baselines allegedly based upon that Part IV would not be opposable to Qatar for any purpose, territorial or maritime. There is no such thing in conventional or general international law as a "secret archipelagic State" appearing in or disappearing from international judicial proceedings or international relations in general. There is a question of good faith involved here. In any case, it is worthwhile noting at this juncture that Part IV of the 1982 Convention does not contain any special rule concerning maritime delimitations of archipelagic States with other States. In matters of maritime delimitation, archipelagic States, like any other State, are subject to the same norms as set forth in other parts of the 1982 Convention and general international law.

57. Furthermore, the self–styled archipelagic State of Bahrain of the current proceedings would possess the singular characteristic of alleging title to territory over an area of the mainland, the so–called "Zubarah region", and of having always exercised authority and control in that area of the mainland (Bahrain's general thesis concerning Zubarah). In such circumstances, how is it possible for Bahrain to define itself as an "archipelagic State" of the kind referred to in Part IV of the 1982 Convention on the Law of the Sea? Bahrain's thesis and claim concerning Zubarah are in full contradiction with the definition of the terms "archipelagic State" and "archipelago" in Article 46 of the 1982 Convention, because Bahrain is not alternatively pleading its self–proclaimed condition of "archipelagic State" as referred to in Part IV of the Convention. In the current proceedings, Bahrain pleads that it is such an "archipelagic State", with or without the so–called "Zubarah region". A contradiction of such magnitude remains for me a conundrum with no satisfactory logical and/or legal explanation.

58. In the light of the above, I cannot but reject, as does the Judgment, Bahrain's claim to be an "archipelagic State" within the meaning of Part IV of the 1982 Convention on the Law of

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the Sea and, consequently, any alleged entitlement of the State of Bahrain to draw straight archipelagic baselines as provided for in Article 47 of that Convention.

[pp. 423-424 D.O. Torres Bernárdez] 475. ... [T]he Judgment's approach is without precedent in the international jurisprudence relating to maritime delimitations which, since the North Sea Continental Shelf case onwards, has disregarded minor maritime features located between the mainland coasts of the States parties as a factor intervening from the start in the delimitation operation because of its obvious distorting effects for achieving an equitable result, without prejudice of course to taking them or some of them into account at a later stage as "special or relevant circumstances". As stated in the Judgment of the Chamber of the Court in the Delimitation of the Maritime Boundary in the Gulf of Maine Area case: "the Chamber likewise would point out the potential disadvantages inherent in any method which takes tiny islands uninhabited rocks or low–tide elevations, sometimes lying at a considerable distance from terra firma, as basepoint for the drawing of a line intended to effect an equal division of a given area. If any of these geographical features possess some degree of importance, there is nothing to prevent their subsequently being assigned whatever limited corrective effect may equitably be ascribed to them, but that is an altogether different operation from making a series of such minor features the very basis for the determination of the dividing line, or from transforming them into a succession of basepoints for the geometrical construction of the entire line. It is very doubtful whether a line so constructed could, in many concrete situations, constitute a line genuinely giving effect to the criterion of equal division of the area in question, especially when it is not only a terrestrial area beneath the sea which has to be divided but also a maritime expanse in the proper sense of the term, since in the latter case the result may be even more debatable." (I.C.J. Reports 1984, pp. 329–330, para. 201); (emphasis added).

476. The present Judgment's approach is just the opposite of the one described in the quotation above. As the quotation explains in fine, the fact that in the southern part or sector of the maritime delimitation area the single maritime boundary divides "territorial seas" is not a justification for proceeding otherwise without risking an inequitable result. What in fact happened in the present case is that the majority accepted one of the two following propositions or both of them, namely: (i) that in the case of an archipelago or multiple–island

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State the relevant principles and rules should be interpreted differently in their application to the case; or (ii) that when the maritime boundary line divides "territorial seas" the delimitation operation concerned should take into account from the very beginning of the process all minor or tiny maritime features without excluding low–tide elevations for the purpose of defining "basepoints".

[p. 427 D.O. Torres Bernárdez] 486. I have no doubt that in the present case the "equidistance method" should be applied in the southern as well as the northern parts of the delimitation area for the purpose of the construction of a "provisional equidistance" line subject to adjustments in the light of Qatari or Bahraini special or relevant circumstances.

487. The Judgment, however, follows a different path for the construction of its own "equidistance line" (see below). This prompts me to underline two points. First, that my understanding of the interplay of the two provisions of Article 15 of the 1982 Convention does not coincide with the line of reasoning of the Judgment in that respect. Secondly, that the two provisions of Article 15 by no means exclude the normative principle of the "equitable solution" expressly referred to in Articles 74 and 83 of the 1982 Convention. On the contrary, I consider that the "equitable solution" principle is an integral part of Article 15 of the 1982 Convention when read as a whole. Therefore, I cannot accept that the "equitable solution" principle has no role to play in a delimitation of "territorial seas".

488. As to the first point mentioned in the preceding paragraph the interplay of the two provisions of Article 15 of the 1982 Convention I am of the opinion that the special circumstances of the Article's second provision are supposed to intervene in the delimitation operation after the establishment of the "median line" under the first provision and not before or simultaneously, as the Judgment does.

489. It follows from the above that, for me, the "equitable solution" principle should be present in the delimitation effected by the single maritime boundary in both the northern and southern parts of the delimitation area, as recognized by the fundamental customary delimitation norm identified by the Chamber of the Court in the Gulf of Maine case.

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490. Lastly, regarding Article 13 of the 1982 Convention relating to "low–tide elevations", the Judgment appears, in many respects, to view what is essentially a permissive rule as a kind of "legal obligation" for the Court. We disagree. The provision in question uses the verb "may" and not "shall". A State may or may not apply that provision. The same applies to the Court in a maritime delimitation entrusted to it. Thus it is the Judgment which has chosen to apply the provision referred to, but the Court is not obliged to do so when, for example, an "equitable solution" in a given maritime delimitation could be jeopardised by the application of that permissive rule.

[pp. 432-434 D.O. Torres Bernárdez] 506. An "equidistance line" is by definition a line between two lines, but there is no trace in the Judgment of those two lines required for the construction of the "equidistance line". Normally, those baselines are the mainland coasts or coastal front lines of the two States concerned. But the Judgment does not apply the "baselines" of the mainland to mainland method for the construction of its so–called "equidistance line".

507. On the other hand, once the "archipelagic baselines" and the "straight baselines" are excluded, the Judgment is without any Bahraini line serving as a baseline for the construction of its "equidistance line". What it does for this operation is to replace the coastal mainland baseline of Bahrain by a series of selected "basepoints" in the minor islets, rocks and sand banks already referred to and in and low–tide elevations considered to be in the territorial sea of Bahrain alone. These features are rather isolated from each other. They have been selected, according to the Judgment, bearing in mind the pleadings and arguments of Bahrain in the present proceedings and related rules invoked. No Bahraini "basepoint" is situated on the mainland coast of Bahrain.

508. Where Qatar is concerned, the main "basepoints" of the "equidistance line" in the Judgment are situated on the western mainland coast of Qatar, namely on the Qatar peninsula. But Qatar did not plead "basepoints" but a "baseline", namely its western mainland coastline which extends, north to south, from Ras Rakan to Ras Uwaynat. The replacement of the mainland coastline pleaded by Qatar with some selected "basepoints" minimizes the western coast of Qatar as land territory generating territorial sea entitlements or rights.

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509. In fact, the "equidistance line" of the Judgment is not an "equidistance line" in the ordinary sense of the term, but, as its very title indicates, an equidistance line taking into consideration all the islands as well as low tide–elevations located in the territorial sea of one State only. We are not, therefore, dealing with an equidistance or median line as this term is usually understood, but with something else.

510. I have the most serious doubts whether the "equidistance line" in the Judgment can be an appropriate instrument for making a fair maritime delimitation, even in the circumstances of the present case. A comparison between the "equidistance line" in the Judgment and the final course of the single maritime boundary adopted shows how many adjustments were required to define that boundary, not counting the several others which would have been necessary, in my opinion, to reach the overall legal goal of an "equitable solution".

511. As indicated, there is no doubt that by using the described method for the construction of its "equidistance line", the Judgment had in mind the fact that the State of Bahrain is geographically an archipelago. But, these geographical circumstances could and should have been taken into account by adjusting a true "equidistance line", namely an equidistance line between the mainland coast or coastal fronts of Qatar and Bahrain. The danger for an equitable result posed by an "equidistance line" such as the one in the Judgment for one of the two Parties is obvious.

512. In the present case this danger was real. The equidistance line method as used has not led, in my opinion, to an equitable result in all the segments conforming to the single maritime boundary finally adopted. In fact, in the southern part of the delimitation area, at an early stage in the legal delimitation operation, the "equidistance line" in the Judgment already left Bahrain the totality of the overlapping area of the 12–mile territorial sea generated by the western mainland coast of Qatar and even more than that. In terms of the law of the sea, that result is not an equidistance line capable of producing an "equitable result". The resulting excess of the method used has, however, been somewhat corrected by the Judgment by other means, although the single maritime boundary adopted still left Bahrain with more extensive maritime areas than any previous terms of reference external to the Parties, namely the 1947 British line and the Boggs–Kennedy line.

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513. The so–called "mainland to mainland method" for the purpose of defining a "provisional equidistance line" or an "equidistance line" is a particularly reasonable method when, as in the Parties' southern sectors, the dividing line effects a territorial sea delimitation and the maritime area concerned is dotted with a great number of small islands, islets, rocks, reefs and low–tide elevations which could otherwise create a disproportionately distorting effect and ultimately lead to an inequitable result, or to jeopardizing the security interests of one Party or the other, or even to violations of the principle of non–encroachment. The small islands, islets, rocks, reefs and low–tide elevations referred to could even be "circumstances" justifying subsequent adjustments of a normal "equidistance line", but in no event could they be "basepoints" for the construction of the "median line" in the first provision of Article 15 of the 1982 Convention.

514. Moreover, the determination by an international court or tribunal of the "baselines" of an "equidistance line", constructed by it for the purpose of a maritime delimitation, is an operation which should by no means be confused with the one concerning the determination by a State of the baselines from which it measures the breadth of its own territorial sea. International jurisprudence is also quite clear in this respect. It follows that these baselines may coincide in some cases but not in others. The author, object and purpose and function of these two kinds of baselines are not the same. In the present case, the question of whether these two kinds of baselines coincide does not even arise. Both Parties have notified the Court that they have not yet established the baselines for measuring the outer limits of their respective territorial seas. The situation is therefore quite different from the Jan Mayen case in which both parties had already established those baselines before instituting proceedings before the Court, did not challenge them during the proceedings, and no territorial sea delimitation was at issue, as it is in the present case.

515. The "basepoints" of the "equidistance line" in the Judgment are located in the low–water line of the "relevant coasts" as constructed by the Judgment. This is the general rule and, consequently, it is acceptable for me provided that low–water lines concerned are clearly marked on large–scale charts officially recognized by the coastal State. However, this is far from being the situation in the present case. Consequently, the low–water line introduces into the present case a further subjective element in the delimitation operation effected by the Judgment.

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Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 424] 244. The Court noted in its Judgment of 11 June 1998 (I.C.J. Reports 1998, p. 321, para. 107 and p. 322, para. 110) that negotiations between the Governments of Cameroon and Nigeria concerning the entire maritime delimitation – up to point G and beyond – were conducted as far back as the 1970s. These negotiations did not lead to an agreement. 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. 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.

245. As to negotiations with Equatorial Guinea and Sao Tome and Principe, the Court does not find that it follows from Articles 74 and 83 of the Law of the Sea Convention that the drawing of the maritime boundary between Cameroon and Nigeria presupposes that simultaneous negotiations between all four States involved have taken place.

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The Court is therefore in a position to proceed to the delimitation of the maritime boundary between Cameroon and Nigeria in so far as the rights of Equatorial Guinea and Sao Tome and Principe are not affected.

[pp. 441-443] 288. 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, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an "equitable result".

289. 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 or shifting of that line" (I.C.J. Reports 1993, Judgment, p. 61, para. 51). 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 case–law 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

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necessary to be taken into account in the delimitation process." (Ibid., p. 62, para. 55.) 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).

290. The Court will apply the same method in the present case. 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 location of the base points to be used in the construction of the equidistance line will be determined. 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.)

291. In the present case the Court cannot accept Cameroon’s contention, on the one hand, that account should be taken of the coastline of the Gulf of Guinea from Akasso (Nigeria) to Cap Lopez (Gabon) in order to delimit Cameroon’s maritime boundary with Nigeria, and, on the other, that no account should be taken of the greater part of the coastline of Bioko Island. First, the maritime boundary between Cameroon and Nigeria can only be determined by reference to points on the coastlines of these two States and not of third States. Secondly, the presence of Bioko makes itself felt from Debundsha, at the point where the Cameroon coast turns south–south–east. Bioko is not an island belonging to either of the two Parties. It is a constituent part of a third State, Equatorial Guinea. North and east of Bioko the maritime rights of Cameroon and

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Equatorial Guinea have not yet been determined. The part of the Cameroon coastline beyond Debundsha Point faces Bioko. It cannot therefore be treated as facing Nigeria so as to be relevant to the maritime delimitation between Cameroon and Nigeria (see below, p. 137, sketch–map No. 11).

292. Once the base points have been established in accordance with the above– mentioned 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. As the Court has already had occasion to explain, this equidistance line cannot be extended beyond a point where it might affect rights of Equatorial Guinea. This limitation on the length of the equidistance line is unavoidable, whatever the base points used. In the present case the Court has determined that the land–based anchorage points to be used in the construction of the equidistance line are West Point and East Point, as determined on the 1994 edition of British Admiralty Chart 3433. These two points, situated respectively at 8° 16’ 38" longitude east and 4° 31’ 59" latitude north and 8° 30’ 14" longitude east and 4° 30’ 06" latitude north, correspond to the most southerly points on the low–water line for Nigeria and Cameroon to either side of the bay formed by the estuaries of the Akwayafe and Cross Rivers. Given the configuration of the coastlines and the limited area within which the Court has jurisdiction to effect the delimitation, no other base point was necessary for the Court in order to undertake this operation.

[pp. 443-446] 293. 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. 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

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leads to an equitable result in the case in question." (I.C.J. Reports 1985, p. 47, para. 63.)

294. The Court is bound to stress in this connection that delimiting with a concern to achieving an equitable result, as required by current international law, is not the same as delimiting in 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.

295. The geographical configuration of the maritime areas that the Court is called upon to delimit is a given. It is not an element open to modification by the Court but a fact on the basis of which the Court must effect the delimitation. 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. 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: "[i]t 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).

296. Cameroon contends that the concavity of the Gulf of Guinea in general, and of Cameroon’s coastline in particular, creates a virtual enclavement of Cameroon, which constitutes a special circumstance to be taken into account in the delimitation process.

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Nigeria argues that it is not for the Court to compensate Cameroon for any disadvantages suffered by it as a direct consequence of the geography of the area. It stresses that it is not the purpose of international law to refashion geography.

297. The Court does not deny that the concavity of the coastline may be a circumstance relevant to delimitation, as it was held it 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. Thus, in the Guinea/Guinea–Bissau case, the Arbitral Tribunal did not address the disadvantage resulting from the concavity of the coast from a general viewpoint, but solely in connection with the precise course of the delimitation line between Guinea and Guinea–Bissau (ILM, Vol. 25 (1986), p. 295, para. 104). In the present case the Court has already determined that the coastlines relevant to delimitation between Cameroon and Nigeria do not include all of the coastlines of the two States within the Gulf of Guinea. The Court notes that the sectors of coastline relevant to the present delimitation exhibit no particular concavity. Thus the concavity of Cameroon’s coastline is apparent primarily in the sector where it faces Bioko. Consequently the Court does not consider that the configuration of the coastlines relevant to the delimitation represents a circumstance that would justify shifting the equidistance line as Cameroon requests.

[p. 446] 298. Cameroon further contends that the presence of Bioko Island constitutes a relevant circumstance which should be taken into account by the Court for purposes of the delimitation. It argues that Bioko Island substantially reduces the seaward projection of Cameroon’s coastline. Here again Nigeria takes the view that it is not for the Court to compensate Cameroon for any disadvantages suffered by it as a direct consequence of the geography of the area.

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299. 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. In the present case Bioko Island is subject to the sovereignty of Equatorial Guinea, a State which is not a party to the proceedings. Consequently the effect of Bioko Island on the seaward projection of the Cameroonian coastal front is an issue between Cameroon and Equatorial Guinea and not between Cameroon and Nigeria, and is not relevant to the issue of delimitation before the Court. The Court does not therefore regard the presence of Bioko Island as a circumstance that would justify the shifting of the equidistance line as Cameroon claims.

[pp. 446-447] 300. Lastly, Cameroon invokes the disparity between the length of its coastline and that of Nigeria in the Gulf of Guinea as a relevant circumstance that justifies shifting the delimitation line towards the north–west. For its part, Nigeria considers that Cameroon fails to respect the criteria of proportionality of coastline length, which would operate rather in Nigeria’s favour.

301. 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. The Court notes that in the present case, whichever coastline of Nigeria is regarded as relevant, the relevant coastline of Cameroon, as

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described in paragraph 291, is not longer than that of Nigeria. There is therefore no reason to shift the equidistance line in favour of Cameroon on this ground.

[pp. 447-448] 302. Before ruling on the delimitation line between Cameroon and Nigeria, the Court must still address the question raised by Nigeria whether the oil practice of the Parties provides helpful indications for purposes of the delimitation of their respective maritime areas.

303. Thus Nigeria contends that State practice with regard to oil concessions is a decisive factor in the establishment of maritime boundaries. In particular it takes the view that the Court cannot, through maritime delimitation, redistribute such oil concessions between the States party to the delimitation. Cameroon, for its part, maintains that the existence of oil concessions has never been accorded particular significance in matters of maritime delimitation in international law.

304. 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). 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

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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). 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). 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. 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.

[pp. 466-468 Decl. Oda] 24. Cameroon’s obvious error in unilaterally submitting to the Court the issue of the maritime boundary in the "outer sea" as the object of a "legal dispute" merits further examination. Unlike land boundaries (including that of the territorial sea), which relate essentially to the question of territorial sovereignty, the boundary of the continental shelf in the "outer sea", not being the subject of a legal dispute, cannot, in principle, be determined simply by applying a legal rule or principle. No legal rule or principle mandates recognition of a given line as the only one acceptable under international law. The concrete boundary line may be chosen by negotiation from among the infinite number of possibilities falling within the bounds of equity. This is the view I propounded, after an extensive analysis of the issues and the travaux préparatoires, in my separate opinion appended to the Court’s Judgment in the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (I.C.J. Reports 1993, p. 109).

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25. Article 6 of the 1958 Geneva Convention on the Continental Shelf provides "the boundary of the continental shelf ... shall be determined by agreement between [the parties]." It is important to note that even at the time of its adoption, this rule was fundamentally different from that applicable to the territorial sea, where recourse to the median line is the governing principle (1958 Geneva Convention on the Territorial Sea, art. 12. The basic principle that the continental shelf boundary should be agreed upon by negotiation was carried over into the 1982 United Nations Convention on the Law of the Sea (Art. 83).

26. It is certainly true that a provision simply stating that the boundary should be agreed upon by negotiation does not identify any precise boundary line and, in fact, the outcome of negotiations concerning the continental shelf boundary is dictated by the relative bargaining power of the parties. But the 1958 Convention did offer a guiding principle where negotiations fail: "[i]n the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line [in the case of opposite coasts]" and "the boundary shall be determined by application of the principle of equidistance [in the case of adjacent coasts]" (Art. 6, paras. 1 and 2). This so–called "equidistance (median) line + special circumstances" rule could have been applied in various ways aiming at an "equitable solution".

27. Having realized that this provision did not lay down any objective criteria for drawing the boundary, the drafters of the 1982 United Nations Convention on the Law of the Sea attempted to formulate such criteria but, after much effort over several years, could do no better than come to the compromise solution now found in the 1982 Convention: "1. The delimitation of the continental shelf ... shall be effected by agreement on the basis of international law ... in order to achieve an equitable solution. 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV [settlement of disputes]." (Art. 83.)

28. I am afraid that great misunderstanding prevails in academic circles regarding interpretation of these provisions. I must state, first, that the provisions of Article 83, paragraph 2, do not constitute a compromissory clause such as is referred to in Article 36, paragraph 1, of the Court’s Statute; secondly, the fact that boundary negotiations have failed

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does not in itself mean that a "(legal) dispute" has arisen; and, thirdly, the provisions of Article 83, paragraph 2, should not be interpreted as conferring compulsory jurisdiction on those institutions listed in Article 287 of Part XV. Notwithstanding the title of Section 2 ("Compulsory Procedures entailing Binding Decisions") of Part XV of the 1982 Convention, it is clear that Section 2, when read in conjunction with Section 3 ("Limitations and Exceptions to Applicability of Section 2"), does not provide for such procedures in a boundary delimitation case referred to any of those institutions, including this Court.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002 [p. 690 Decl. Oda] It is important to keep in mind that sovereignty over two tiny, uninhabited islands, on the one hand, and those islands’ influence on the delimitation of the continental shelf, on the other, are two quite different matters. Though Malaysia has now been awarded sovereignty over the islands, the impact of the Court’s Judgment on the delimitation of the continental shelf - which has been the leading issue in the negotiations between the two States since the 1960s - should be considered from a different angle. Today, the rule concerning the delimitation of the continental shelf is set out in Article 83 of the 1982 United Nations Convention on the Law of the Sea calling for "an equitable solution". The main question remains how "equitable" considerations apply to these tiny islands for the purpose of the delimitation of the continental shelf. In conclusion, I submit that the present Judgment determining sovereignty over the islands does not necessarily have a direct bearing on the delimitation of the continental shelf, which has been a subject of dispute between the two States since the late 1960s.

*

2.3. Internal Waters

*

2.4. Maritime Zones

2.5. Freedom of Navigation

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain)

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Judgment of 16 March 2001

[pp. 109-110] 223. The Court notes that, because of the line thus adopted, Qatar's maritime zones situated to the south of the Hawar Islands and those situated to the north of those islands are connected only by the channel separating the Hawar Islands from the peninsula. This channel is narrow and shallow, and little suited to navigation. The Court therefore emphasizes that, as Bahrain is not entitled to apply the method of straight baselines (see paragraph 215 above), the waters lying between the Hawar Islands and the other Bahraini islands are not internal waters of Bahrain, but the territorial sea of that State. Consequently, Qatari vessels, like those of all other States, shall enjoy in these waters the right of innocent passage accorded by customary international law. In the same way, Bahraini vessels, like those of all other States, enjoy this right of innocent passage in the territorial sea of Qatar.

*

2.6. Fisheries

2.7. Islands / Low–tide elevations

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[p. 99] 195. 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.

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[pp. 100-103] 200. Both Parties agree that Fasht ad Dibal is a low–tide elevation. Whereas Qatar maintains – just as it did with regard to Qit'at Jaradah – that Fasht ad Dibal as a low–tide elevation cannot be appropriated, Bahrain contends that low–tide elevations by their very nature are territory, and therefore can be appropriated in accordance with the criteria which pertain to the acquisition of territory. "Whatever their location, low–tide elevations are always subject to the law which governs the acquisition and preservation of territorial sovereignty, with its subtle dialectic of title and effectivités."

201. 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). Under these provisions, the low–water line of a low–tide elevation may be used as the baseline for measuring the breadth of the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. If a low–tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea, it has no territorial sea of its own. The above–mentioned Conventions further provide that straight baselines shall not be drawn to and from low–tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them (1958 Convention, paragraph 3 of Article 4; 1982 Convention, paragraph 4 of Article 7). According to Bahrain this is the case with regard to all low–tide elevations which are relevant in the present case for the delimitation process.

202. 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

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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.

203. In Bahrain's view, however, it depends upon the effectivités presented by the two coastal States which of them has a superior title to the low–tide elevation in question and is therefore entitled to exercise the right attributed by the relevant provisions of the law of the sea, just as in the case of islands which are situated within the limits of the breadth of the territorial sea of more than one State. Bahrain contends that it has submitted sufficient evidence of the display of sovereign authority over all the low–tide elevations situated in the sea between Bahrain's main islands and the coast of the Qatar peninsula.

204. 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 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.

205. 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

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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.

206. 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.

207. 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 Conventions 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.

208. 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 low–tide elevations unless lighthouses or similar installations which are permanently above sea

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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 basepoints for straight baselines.

209. The Court, consequently, is of the view that in the present case there is no ground for recognizing the right of Bahrain to use as a baseline the low–water line of those low–tide elevations which are situated in the zone of overlapping claims, or for recognizing Qatar as having such a right. The Court accordingly concludes that for the purposes of drawing the equidistance line, such low–tide elevations must be disregarded.

[pp. 124-125 S.O. Oda] 7. I believe that the questions of whether sovereignty over an islet or a low–tide elevation may be acquired through appropriation by a State and how such features can affect the extent of the territorial sea or the boundary of the territorial sea remain open matters. The Court appears to take the position that the provision concerning low–tide elevations in the 1982 United Nations Convention on the Law of the Sea (Art. 13), which is identical to the relevant provision (Art. 11) of the 1958 Convention on the Territorial Sea and the Contiguous Zone, reflects customary international law as it stands today. I might add that already in 1930, at the Hague Conference for the Codification of International Law, a similar idea was proposed for "an elevation of the seabed which is only uncovered at low tide" (League of Nations, Acts of the Conference for the Codification of International Law, Vol. I, p. 131). But it is important to note that at the time of the Hague Codification Conference (1930) and of the adoption of the Convention on the Territorial Sea (1958) the 3–mile rule prevailed; that the 1982 United Nations Convention was not adopted until nearly 50 years and 25 years later, respectively, and that the 1982 United Nations Convention simply copied the relevant 1930 and 1958 texts on those issues without any in–depth discussion at the Third United Nations Conference on the Law of the Sea (UNCLOS III) on the effect which would follow from the broadening of the territorial sea from 3 miles to 12 miles. In 1930 and 1958, low–tide elevations located in the rather narrow (3–mile) seabelt off the coast would not have had much effect on the extent or the boundary of the territorial sea, and these provisions might have reflected customary international law prevailing at that time. But how could they have the same minor effect if the territorial sea were to be widened to

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12 miles? This matter has been given very little thought in academic and judicial circles. Since there is no practice in this area, the question is better left for future discussion with a view to formulating the governing law.

8. The provisions on islands in the 1982 United Nations Convention on the Law of the Sea come from the 1930 text of the Hague Codification Conference and the 1958 Convention on the Territorial Sea. But small islands and islets did not receive specific attention and the provision on islands in general would have applied. In UNCLOS III there were some efforts, although at an unofficial level, to define "island" more cautiously so that the title granted under the 1958 Convention would not extend to small islands or islets. These efforts did not produce any clear result. I wish to mention this, as I have some doubts as to whether Article 121 concerning the régime of island of the 1982 United Nations Convention which does not refer to islets or small island may as a whole be considered the customary international law in the age when the 12–mile territorial sea prevails.

9. My further concern is that modern technology might make it possible to develop small islets and low–tide elevations as bases for structures, such as recreational or industrial facilities. Although the 1982 United Nations Convention does contain some relevant provisions (e.g. Arts. 60 and 80), I consider that whether this type of construction would be permitted under international law and, if it were, what the legal status of such structures would be, are really matters to be reserved for future discussion. The statements in the present Judgment concerning Qit'at Jaradah, as an island, and Fasht ad Dibal and certain other low– tide elevations could have an enormous impact on the future development of the law of the sea. The Court, in my view, should have been more circumspect in handing down its decision in this respect.

[pp. 189-190 J.D.O. Bedjaoui, Ranjeva and Koroma] 137. The Court's Judgment has almost as little to say on the issues of proximity, contiguity and territorial integrity as it does on the question of historical title. There exists, however, a strong legal presumption under international law that islands lying within the territorial waters of a State belong to that State. "There is a strong presumption that islands within the twelve–mile coastal belt will belong to the coastal State, unless there is a fully–established case to the contrary (as,

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for example, in the case of the Channel Islands). But there is no like presumption outside the coastal belt, where the ownership of the islands is plainly at issue." So states the Award of 9 October 1998 made by the Arbitration Tribunal in the Eritrea/Yemen case under the presidency of Sir Robert Jennings (para. 474). This Award applied the principle of international law that an island situated in the territorial waters of a State is deemed to form part of the territory of that State.

138. This is a "strong presumption" in law – one which admittedly is not irrebuttable but which cannot be overcome except: – in terms of procedure, by reversing the burden of proof; and – substantively, by invoking a superior title.

139. The presumption concerns islands situated within territorial waters. Today the breadth of the territorial sea is 12 miles. The Eritrea/Yemen Award of course took this into account. If we go by this figure, all the Hawar Islands belong to Qatar. And if we go by the 3–mile breadth which applied at the time of the Anglo–Qatari Treaty of 3 November 1916, the majority of the islands and islets of the Hawars lie totally or partially within Qatar's territorial sea. The claim made by Bahrain on 29 May 1938 concerned 17 islands and islets, 11 of which are within the 3–mile limit.

140. Bahrain denied the existence of this principle in positive law and cited no fewer than 11 instances worldwide in which the principle has not prevailed. But Bahrain's argument is irrelevant, since the situations mentioned all derive from special circumstances and were created by treaty. Anything – almost anything – can be done by treaty, since the contractual freedom of sovereign States is a fundamental principle. The Eritrea/Yemen Award took good care to say "unless there is a fully–established case to the contrary".

141. What is more, proximity alone does not constitute a title. It supplements or combines with other elements to constitute a title. This is clearly the case here. It will also be noted that the concept of proximity is not as alien to the law as might at first be thought. The notion of "distance" is clearly present in the law of the sea. That of "proximity" derives from it. After all, the title of a coastal State to its territorial sea stems exclusively from

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proximity. What is more, an "archipelagic" State, which is what Bahrain claims to be, is nothing more than a collection of islands having in common "proximity" alone.

142. In the present case we are simply recalling the strong presumption that an island belongs to a coastal State if it is situated within the limits of its territorial sea. This presumption exists, and calling it the "principle of proximity" or by any other name cannot detract from its existence merely because the principle comes cloaked in a new guise, such as "contiguity", or because a section of the doctrine – in truth, a rather small one – on occasion challenges it.

[pp. 208-210 J.D.O. Bedjaoui, Ranjeva and Koroma] 196. It is not for the Court to settle a dispute involving theoretical discussions of physical geography. But, irrespective of the legal and political dimension of the question whether or not Qit'at Jaradah is an island in law, we must not lose sight of a consideration of basic common sense: one cannot have contradictory answers to one and the same question. According to the Dictionnaire Robert: "An island is an area of terra firma which emerges permanently from the water"; The Cambridge International Dictionary of English speaks of "a piece of land completely surrounded by water". For its part, the first paragraph of Article 121 of the Montego Bay Convention defines an island as "a naturally formed area of land, surrounded by water, which is above water at high tide". Over and above editorial differences inherent in the aims of the respective disciplines, it will be noted that the problem turns on considerations of hydrography (high tide) and geomorphology (a naturally formed area of land).

197. First, the hydrographic element: "high tide" is an important factor in the definition of an island under the 1982 Convention; this criterion is more precise than that used in everyday language. Here, appearance above the waterline at high tide is the essential condition in order for a naturally formed area of land to be characterized as an "island" rather than as a low–tide elevation.

198. Next, geomorphological considerations, which entail examination of the question of the composition of the "land" comprising an island: "natural area of land", "area of terra firma". The "naturalness" of an insular feature has been the subject of fierce debate, both in doctrine and in the work of codification. Is the land – a product of nature – the consequence of geological action or of sedimentation? A proposal by H. Lauterpacht to insert the adjective

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"natural" before "area of land" was rejected by the International Law Commission in 1954. It was on a proposal by the United States, who were hostile to any artificial, abusive extension of the territorial sea and to any encroachment on the freedom of the high seas, that an amendment was adopted providing for the insertion of the word "natural" in the paragraph dealing with the definition of an island. The sense of the term has itself changed. Since the Anna case, it would seem that it had been accepted that the geomorphological composition of a feature was irrelevant: sediment, mud, coral, madrepore, or terra firma properly so–called. But contrary to the judgment of Sir William Scott in that case, the Montego Bay Convention departed quite significantly from those principles. The fact that the land lies above the high–water line is not enough in itself for a feature to be characterized as an island; only areas of terra firma can be accorded the status of island under Article 121 of the Law of the Sea Convention. In the first place, Article 121 introduces a distinction between islands and "rocks", whose legal régime is dealt with in the third paragraph. The treatments of rocks and islands are not identical, even though both are features permanently above the high–water line and of stable geomorphological composition. Secondly, areas of land lying above the high–water line are not confined to islands. The 1982 Convention expressly refers to atolls, but provides no legal definition of these; in geographical terms, they are "ring–shaped coral reefs in warm seas, enclosing a lagoon communicating with the high sea" (Dictionnaire Robert). In terms of their geomorphological composition, atolls are not terra firma, and therefore cannot be accorded the status of islands. In short, atolls are features or elevations consisting of a mixture of sediment, mud, coral and madrepore. Cays are also areas of land lying permanently above sea level. "A cay is an islet or elevation composed of sand compacted to a greater or lesser degree" (Grand Larousse universel). This is a category of maritime feature which remains above the waterline at high tide but which is not terra firma in the ordinary, traditional sense of the term. Unlike islands, atolls, or even artificial islands, the Montego Bay Convention does not refer to cays as a geographical category recognized by law.

199. As regards Qit'at Jaradah, the various changes which this feature has undergone can be explained on the one hand by the absence of terra firma and on the other by the fact that it has been formed by accretion, that is to say, "a process of agglomeration of inorganic elements, solid or liquid" (Dictionnaire Robert). Thus the question is whether it can be assimilated to an island within the meaning of Article 121 of the 1982 Convention. The answer must be a

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negative one, for its geomorphological characteristics place it in a category not provided for in the Montego Bay Convention.

200. The assimilation of islands to land territory is moreover explicable purely in terms of geomorphological considerations: in both cases, by contrast with atolls and cays, the stable underlying element is terra firma; thus they have a physically durable base which ensures their permanence. In the case of Qit'at Jaradah, how otherwise to explain the ease with which the upper surface could be removed and subsequently restored? In law, this assimilation must be understood in conjunction with the notion of effectiveness of sovereignty; sovereignty, in international law, implies a minimum stable terrestrial base, which is not to be found in maritime features above the waterline which are not islands. In support of this difference in treatment as between an island and other maritime features which appear above the waterline at high tide, we may cite official marine charts. These documents, because of the need to meet the safety requirements of marine navigation, offer the best descriptions and evidence of the location and status of features situated within maritime waters.

[pp. 220-221 Decl. Vereshchetin] 13. I regret also being unable to concur with another finding of the Court relating to the characterization of the maritime feature Qit'at Jaradah as "an island" (paras. 195 and 252 (4) of the Judgment). The opposing views of the experts, the absence of any evidence whatsoever to the effect that Qit'at Jaradah has ever been shown on nautical charts as an island, the alleged attempts of both States to artificially change the upper part of its surface, do not allow me to conclude that Qit'at Jaradah has the legal status of an island as provided for in the 1982 Convention on the Law of the Sea. In my assessment, this tiny maritime feature (see para. 197 of the Judgment), constantly changing its physical condition, cannot be considered an island having its territorial sea. Rather, it is a low–tide elevation, whose appurtenance depends on its location in the territorial sea of one State or the other. Therefore the attribution of Qit'at Jaradah should have been effected after the delimitation of the territorial seas of the Parties and not vice versa.

[p. 224 S.O. Parra–Aranguren] 6. Nor does the construction of navigation aids constitute acts of sovereignty, as the Court stated in its Judgment of 17 November 1953. In that case, the

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Court considered the significance of the lighting and buoying of the Minquiers by the French Government, concluding that: "The Court does not find that the facts, invoked by the French Government, are sufficient to show that France has a valid title to the Minquiers. As to the above– mentioned acts from the nineteenth and twentieth centuries in particular, including the buoying outside the reefs of the group, such acts can hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets." (Minquiers and Ecrehos (France v. United Kingdom), Judgment of 17 November 1953, I.C.J. Reports 1953, p. 71).

7. Paragraph 199 of the Judgment states that "Similar acts of authority have been invoked by Bahrain in order to support its claim that it has sovereignty over Fasht ad Dibal". However, for the above–stated reasons such acts, even if proved, cannot support the sovereignty claimed by Bahrain over Fasht ad Dibal.

[p. 342 D.O. Torres Bernárdez] 240. As to international law, there is a norm, already in existence in the nineteenth century, to the effect that islands lying wholly or partly within the territorial sea of a given country are to be regarded as part of that country. This norm is formulated in the form of a strong juris tantum presumption and is not therefore an absolute rule in the sense that it is capable of being rebutted by evidence of superior title. However, during the period of historical consolidation and recognition of the original title of Qatar over the whole peninsula of Qatar and its adjoining islands (1868–1915), Bahrain did not rebut that presumption by claiming or submitting evidence of superior title or indeed any evidence at all. As already indicated, Bahrain remained silent. It is thus an objective geographical fact that the majority of the islands and islets constituting the Hawar Islands and Janan Island lie wholly or partly within a three–mile territorial sea limit from the mainland coast of Qatar (recognized at the relevant time here considered) and all of them lie within a twelve–mile territorial sea limit from the mainland coast currently applied by Qatar in conformity with international law.

*

3. INTERNATIONAL WATERCOURSES

*

4. AIR AND SPACE LAW

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Court considered the significance of the lighting and buoying of the Minquiers by the French Government, concluding that: "The Court does not find that the facts, invoked by the French Government, are sufficient to show that France has a valid title to the Minquiers. As to the above– mentioned acts from the nineteenth and twentieth centuries in particular, including the buoying outside the reefs of the group, such acts can hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets." (Minquiers and Ecrehos (France v. United Kingdom), Judgment of 17 November 1953, I.C.J. Reports 1953, p. 71).

7. Paragraph 199 of the Judgment states that "Similar acts of authority have been invoked by Bahrain in order to support its claim that it has sovereignty over Fasht ad Dibal". However, for the above–stated reasons such acts, even if proved, cannot support the sovereignty claimed by Bahrain over Fasht ad Dibal.

[p. 342 D.O. Torres Bernárdez] 240. As to international law, there is a norm, already in existence in the nineteenth century, to the effect that islands lying wholly or partly within the territorial sea of a given country are to be regarded as part of that country. This norm is formulated in the form of a strong juris tantum presumption and is not therefore an absolute rule in the sense that it is capable of being rebutted by evidence of superior title. However, during the period of historical consolidation and recognition of the original title of Qatar over the whole peninsula of Qatar and its adjoining islands (1868–1915), Bahrain did not rebut that presumption by claiming or submitting evidence of superior title or indeed any evidence at all. As already indicated, Bahrain remained silent. It is thus an objective geographical fact that the majority of the islands and islets constituting the Hawar Islands and Janan Island lie wholly or partly within a three–mile territorial sea limit from the mainland coast of Qatar (recognized at the relevant time here considered) and all of them lie within a twelve–mile territorial sea limit from the mainland coast currently applied by Qatar in conformity with international law.

*

3. INTERNATIONAL WATERCOURSES

*

4. AIR AND SPACE LAW

368

Self-Determination 5. SELF–DETERMINATION

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Application by the Philippines for Permission to Intervene Judgment of 23 October 2001 [p. 652 S.O. Franck] 2. ... I wish to explicate a legal basis for the Court’s decision which, while consistent with it, has not been advanced by the Court, perhaps because it was insufficiently advanced by the Parties, although discussed in passing by Malaysia (CR 2001/2, p. 56, para. 10 (Lauterpacht)) and the Philippines (CR 2001/3, p. 23, para. 14 (Magallona)). I shall endeavour to demonstrate why that legal basis is of some importance and why the Court need not have been deterred from making this clear. The point of law is quite simple, but ultimately basic to the international rule of law. It is this: historic title, no matter how persuasively claimed on the basis of old legal instruments and exercises of authority, cannot except in the most extraordinary circumstances - prevail in law over the rights of non–self– governing people to claim independence and establish their sovereignty through the exercise of bona fide self–determination.

[pp. 655-658 S.O. Franck] 9. Under traditional international law, the right to territory was vested exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance with the laws relevant to the recognition, exercise and transfer of sovereign domain. In order to judicially determine a claim to territorial title erga omnes, it was necessary to engage with the forms of international conveyancing, tracing historic title through to a critical date or dates to determine which State exercised territorial sovereignty at that point in time. Under modern international law, however, the enquiry must necessarily be broader, particularly in the context of decolonization. In particular, the infusion of the concept of the rights of a "people" into this traditional legal scheme, notably the right of peoples to self–determination, fundamentally alters the significance of historic title to the determination of sovereign title.

10. Previous judgments of this Court (in particular, its Advisory Opinion of 26 January 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia

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(South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, pp. 31–32, paras. 52–53 and its Advisory Opinion of 16 October 1975 in Western Sahara, I.C.J. Reports 1975, pp. 31–33, paras. 54–59) contribute to and recognize the development of the right of non–self–governing peoples to self–determination which "requires a free and genuine expression of the will of the peoples concerned" (Western Sahara, ibid., p. 32, para. 55). The Court recognized in the Namibia case that, "the subsequent development of 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 of them" (I.C.J. Reports 1971, p. 31, para. 52). In the case concerning East Timor (Portugal v. Australia), the Court recognized the principle of self–determination to be "one of the essential principles of contemporary international law" (I.C.J. Reports 1995, p. 102, para. 29).

11. The decisions of this Court confirm the prime importance of this principle of self– determination of peoples. The firm basis for the principle is also anchored in universal treaty law, State practice and opinio juris. Article 1, paragraph 2, of the United Nations Charter indicates that one of the purposes of the United Nations is "[t]o develop friendly relations among nations based on respect for the principle of equal rights and self–determination of peoples". The principle also finds express and implied reflection in other provisions of the Charter, namely Article 55, Article 73 and Article 76 (b). Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights provides that "[a]ll peoples have the right of self– determination", and emphasizes in Article 1 (3), that "States Parties to the present Covenant ... shall respect [the] right [of self–determination], in conformity with the provisions of the Charter of the United Nations".

12. This treaty law has been affirmed, developed and given more tangible form by numerous resolutions of the General Assembly, which have consistently received broad support. General Assembly resolution 637 (VII), adopted on 16 December 1952, was an early recognition that "every Member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self–determination", a right which was stated to be a "prerequisite to the full enjoyment of all fundamental human rights". The "Declaration on the Granting of Independence to Colonial Countries and Peoples", General Assembly resolution 1514 (XV), adopted without dissent on 14 December 1960, is regarded as fundamental to the process of

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decolonization. It is applicable to all "territories which have not yet attained independence" and establishes that "[a]ll peoples have the right to self–determination" while insisting that "[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations". In General Assembly resolution 1541 (XV), adopted with only two dissents on 15 December 1960, the General Assembly contemplated more than one method of self– determination for non–self–governing territories, including "[i]ntegration with an independent State". General Assembly resolution 2131 (XX), "Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty", adopted by 109 countries without dissent on 21 December 1965, declared that, "[a]ll States shall respect the right of self–determination and independence of peoples and nations, to be freely exercised without any foreign pressure, and with absolute respect for human rights and fundamental freedoms". The principle of self–determination was further included among the "basic principles of international law" set out in the "Declaration on Principles of International Law concerning Friendly Relations and Co–operation among States in accordance with the Charter of the United Nations", adopted by consensus as the Annex to resolution 2625 (XXV) on 24 October 1970. According to this document, "all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter" (emphasis added).

13. The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary–General of the United Nations was entrusted under the Manila Accord of 31 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and: "[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives." (Quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, 18th Session, UN Doc. No. A/PV.1219.)

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14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 (e) Non–Self–Governing Territory (Note by the Secretary–General, Political and Constitutional Information on Asian Territories under United Kingdom Administration, UN Doc. No. A/5402/Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization jurisdiction (see Yearbook of the United Nations, 1964, pp. 411–435, which omits North Borneo from the Committee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of self–determination.

15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self–determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self–determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic claims and feudal pre–colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.

16. The lands and people claimed by the Philippines formerly constituted most of an integral British dependency. In accordance with the law pertaining to decolonization, its population exercised their right of self–determination. What remains is no mere boundary dispute. It is an attempt to keep alive a right to reverse the free and fair decision taken almost 40 years ago by the people of North Borneo in the exercise of their legal right to self–determination. The Court cannot be a witting party to that.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 171-172] 88. The Court also notes that the principle of self–determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above, pursuant to which "Every State has the duty to refrain from any forcible action which deprives peoples referred

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to [in that resolution] ... of their right to self–determination." Article 1 common to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights reaffirms the right of all peoples to self– determination, and lays upon the States parties the obligation to promote the realization of that right and to respect it, in conformity with the provisions of the United Nations Charter. 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 developments leave little doubt that the ultimate objective of the sacred trust" referred to in Article 22, paragraph 1, 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). 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 self– determination is today a right erga omnes (see East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29).

[pp. 182-183] 118. As regards the principle of the right of peoples to self– determination, the Court observes that the existence of a "Palestinian people" is no longer in issue. Such existence has moreover been recognized by Israel in the exchange of letters of 9 September 1993 between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and Mr. Yitzhak Rabin, Israeli Prime Minister. In that correspondence, the President of the PLO recognized "the right of the State of Israel to exist in peace and security" and made various other commitments. In reply, the Israeli Prime Minister informed him that, in the light of those commitments, "the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people". The Israeli–Palestinian Interim Agreement on the West Bank and the Gaza

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Strip of 28 September 1995 also refers a number of times to the Palestinian people and its "legitimate rights" (Preamble, paras. 4, 7, 8; Article II, para. 2; Article III, paras. 1 and 3; Article XXII, para. 2). The Court considers that those rights include the right to self–determination, as the General Assembly has moreover recognized on a number of occasions (see, for example, resolution 58/163 of 22 December 2003).

[p. 228 S.O. Kooijmans] 31. Self–determination - In my view, it would have been better if the Court had also left issues of self–determination to this political process. I fully recognize that the right of self–determination is one of the basic principles of modern international law and that the realization of this right for the people of Palestine is one of the most burning issues for the solution of the Israeli–Palestinian conflict. The overriding aim of the political process, as it is embodied inter alia in the Roadmap, is "the emergence of an independent, democratic and viable Palestinian State living side by side in peace and security with Israel and its other neighbours" (dossier Secretary–General, No. 70). This goal is subscribed to by both Israel and Palestine; both are, therefore, in good faith bound to desist from acts which may jeopardize this common interest.

32. The right of self–determination of the Palestinian people is therefore imbedded in a much wider context than the construction of the wall and has to find its realization in this wider context. I readily agree with the Court that the wall and its associated régime impede the exercise by the Palestinian people of its right to self–determination be it only for the reason that the wall establishes a physical separation of the people entitled to enjoy this right. But not every impediment to the exercise of a right is by definition a breach of that right or of the obligation to respect it, as the Court seems to conclude in paragraph 122.

6. NATIONALITY *

6.1. General Questions

*

6.2. Acquisition and Loss

6.3. Diplomatic Protection

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

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Strip of 28 September 1995 also refers a number of times to the Palestinian people and its "legitimate rights" (Preamble, paras. 4, 7, 8; Article II, para. 2; Article III, paras. 1 and 3; Article XXII, para. 2). The Court considers that those rights include the right to self–determination, as the General Assembly has moreover recognized on a number of occasions (see, for example, resolution 58/163 of 22 December 2003).

[p. 228 S.O. Kooijmans] 31. Self–determination - In my view, it would have been better if the Court had also left issues of self–determination to this political process. I fully recognize that the right of self–determination is one of the basic principles of modern international law and that the realization of this right for the people of Palestine is one of the most burning issues for the solution of the Israeli–Palestinian conflict. The overriding aim of the political process, as it is embodied inter alia in the Roadmap, is "the emergence of an independent, democratic and viable Palestinian State living side by side in peace and security with Israel and its other neighbours" (dossier Secretary–General, No. 70). This goal is subscribed to by both Israel and Palestine; both are, therefore, in good faith bound to desist from acts which may jeopardize this common interest.

32. The right of self–determination of the Palestinian people is therefore imbedded in a much wider context than the construction of the wall and has to find its realization in this wider context. I readily agree with the Court that the wall and its associated régime impede the exercise by the Palestinian people of its right to self–determination be it only for the reason that the wall establishes a physical separation of the people entitled to enjoy this right. But not every impediment to the exercise of a right is by definition a breach of that right or of the obligation to respect it, as the Court seems to conclude in paragraph 122.

6. NATIONALITY *

6.1. General Questions

*

6.2. Acquisition and Loss

6.3. Diplomatic Protection

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

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[p. 482-483] 42. …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.

[pp. 487-488] 58. The United States argues further that Germany's first submission, as far as it concerns its right to exercise diplomatic protection with respect to its nationals, is inadmissible on the ground that the LaGrands did not exhaust local remedies. The United States maintains that the alleged breach concerned the duty to inform the LaGrands of their right to consular access, and that such a breach could have been remedied at the trial stage, provided it was raised in a timely fashion. The United States contends that when a person fails, for example, to sue in a national court before a statute of limitations has expired, the claim is both procedurally barred in national courts and inadmissible in international tribunals for failure to exhaust local remedies. It adds that the failure of counsel for the LaGrands to raise the breach of the Vienna Convention at the appropriate stage and time of the proceedings does not excuse the non–exhaustion of local remedies. According to the United States, this failure of counsel is imputable to their clients because the law treats defendants and their lawyers as a single entity in terms of their legal positions. Moreover, the State is not accountable for the errors or mistaken strategy by lawyers.

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59. Germany responds that international law requires the exhaustion of only those remedies which are legally and practically available. Germany claims that in this case there was no remedy which the LaGrands failed to invoke that would have been available in the specific context of their case. This is so because, prior to 1992, the LaGrands could not resort to the available remedies, since they were unaware of their rights due to failure of the United States authorities to comply with the requirements of the Vienna Convention; thereafter, the "procedural default" rule prevented them from seeking any remedy.

60. 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.

[pp. 492-494] 75. Germany further contends that "the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers". Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground. Germany maintains that the right to be informed of the rights under Article 36, paragraph 1 (b), of the Vienna Convention, is an individual right of every national of a State party to the Convention who enters the territory of another State party. It submits that this view is supported by the ordinary meaning of the terms of Article 36, paragraph 1 (b), of the Vienna Convention, since the last sentence of that provision speaks of the "rights" under this subparagraph of "the person concerned", i.e., of the

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foreign national arrested or detained. Germany adds that the provision in Article 36, paragraph 1 (b), according to which it is for the arrested person to decide whether consular notification is to be provided, has the effect of conferring an individual right upon the foreign national concerned. In its view, the context of Article 36 supports this conclusion since it relates to both the concerns of the sending and receiving States and to those of individuals. According to Germany, the travaux préparatoires of the Vienna Convention lend further support to this interpretation. In addition, Germany submits that the "United Nations Declaration on the human rights of individuals who are not nationals of the country in which they live," adopted by General Assembly resolution 40/144 on 13 December 1985, confirms the view that the right of access to the consulate of the home State, as well as the information on this right, constitute individual rights of foreign nationals and are to be regarded as human rights of aliens.

76. The United States questions what this additional claim of diplomatic protection contributes to the case and argues that there are no parallels between the present case and cases of diplomatic protection involving the espousal by a State of economic claims of its nationals. The United States maintains that the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the claims of its nationals through diplomatic protection, are legally different concepts. The United States contends, furthermore, that rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance. It maintains that the treatment due to individuals under the Convention is inextricably linked to and derived from the right of the State, acting through its consular officer, to communicate with its nationals, and does not constitute a fundamental right or a human right. The United States argues that the fact that Article 36 by its terms recognizes the rights of individuals does not determine the nature of those rights or the remedies required under the Vienna Convention for breaches of that Article. It points out that Article 36 begins with the words "[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State," and that

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this wording gives no support to the notion that the rights and obligations enumerated in paragraph 1 of that Article are intended to ensure that nationals of the sending State have any particular rights or treatment in the context of a criminal prosecution. The travaux préparatoires of the Vienna Convention according to the United States, do not reflect a consensus that Article 36 was addressing immutable individual rights, as opposed to individual rights derivative of the rights of States.

77. 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 1, 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.

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78. At the hearings, Germany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right, but has today assumed the character of a human right. In consequence, Germany added, "the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative". The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[p. 35-36] 40. … The Court would first observe that the individual rights of Mexican nationals under subparagraph 1 (b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States. Only when that process is completed and local remedies are exhausted would Mexico be entitled to espouse the individual claims of its nationals through the procedure of diplomatic protection. In the present case Mexico does not, however, claim to be acting solely on that basis. It also asserts its own claims, basing them on the injury which it contends that it has itself suffered, directly and through its nationals, as a result of the violation by the United States of the obligations incumbent upon it under Article 36, paragraph 1 (a), (b) and (c). The Court would recall that, in the LaGrand case, it recognized that "Article 36, paragraph 1 [of the Vienna Convention], creates individual rights [for the national concerned], which ... may be invoked in this Court by the national State of the detained person" (I.C.J. Reports 2001, p. 494, para. 77). It would further observe that violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in submitting a claim in its own name, request the

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Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1 (b). The duty to exhaust local remedies does not apply to such a request. Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection. Without needing to pronounce at this juncture on the issues raised by the procedural default rule, as explained by Mexico in paragraph 39 above, the Court accordingly finds that the second objection by the United States to admissibility cannot be upheld.

[pp. 77-78 Decl. Ranjeva] 8. … Traditionally, diplomatic protection is essentially an institution of general or customary international law: «It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its susbjects, respect for the rules of international law.” (Mavrommatis Palestine Concessions, Judgment No.2, 1924, P.C.I.J. Series A, No 2, p. 12.)

9. In other words, the protection consists in the right of a State to bring an international claim against another State when one of its nationals has been injured by an internationally wrongful act. In light of the terms used by the Permanent Court of International Justice, there is one clear conclusion: diplomatic protection is a right belonging to the State. Hence, in matters concerning the protection of individual rights of nationals, the question is whether there is a place for diplomatic protection.

10. From a purely practical standpoint, reliance on the notion of diplomatic protection and the rule of the exhaustion of local remedies may have perverse effects: the procedural default rule can make compliance with the procedural obligation to exhaust local remedies a futile exercise; no one has yet found a way of bringing an executed prisoner back to life.

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11. On a theoretical level, erading the provision of the Vienna Convention in conjunction with the reasoning in the LaGrand Judgment prompts the following observations: first, the 1963 Convention enumerates the rights that it seeks to protect for the purpose of facilitating the exercise of the consular function, for the benefit both of the sending State and of its nationals; secondly, the LaGrand Judgment describes the components of the consular protection system as being interrelated (I.C.J. Reports 2001, p. 492, para.74); and lastly, according to paragraph 77 of that Judgment: “ the Court concludes that Article 36, paragraph 1, 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” (I.C.J. Reports 2001, p. 494, para. 77).

12. If I have undersdtood them correctly, those propositions contemplate the direct grant of individual rights but do not impose any prior condition for States to invoke violations of the rights of their nationals. Thus, looking beyond the scope of diplomatic protection and the obligation to exhaust local remedies, the question to be determined is the significance of the interrelationship between the components of the consular protection system.

13. The notion of interrelationship was used by the Court in 2001 to characterize the interdependence of the rights enumerated in Article 36, paragraph 1. The raison d’être or focus of that relationship is to seek to facilitate consular protection. However, the manner in which the various rights are defined consists in stating their content and how they are to be apportioned as between the sending State and the detainee; in other words, the 1963 Convention sought to identify the holders of the rights that it created, with individual rights being those belonging to the detained nationals. In these circumstances, the interrelationship contemplated by the 2001 Judgment concerns neither the nature nor the scope of the rights in question; it pertains to the effective implementation of the protection system. The effective exercise by a State of its rights to provide for the protection of its nationals, who derive their rights from Article 36, paragraph 1 (b), is only possible if the detained national does not refuse such an initiative. The discretionary power of the sending State is thus confned to a right of initiative to activate the protection mechanism. And that right of initiative effectively arises “as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national” (Judgment, para. 88).

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[pp. 82-83 S.O. Vereshchetin] 10. I share the view of the majority that Mexico’s claims are admissible and that the duty to exhaust local remedies does not apply to this case. However, my perception of the nature of the "special circumstances" in issue is quite different from that expounded in paragraph 40 of the Judgment. In my view, the special circumstances that, for the purposes of this Judgment, exempt this particular case from the local remedies requirement do not lie in the special character of Article 36 of the Vienna Convention, but rather in the particular factual circumstances of the specific case before the Court, as will be explained further below. Contrary to what the Court says in paragraph 40 of the Judgment, in invoking the rights of individuals under the Vienna Convention before this Court, the State, as a general rule, is not exempt from the duty to exhaust local remedies, subject to certain exceptions as those specified in Article 10 [14] of the ILC Draft. As the ELSI Chamber observed with regard to this rule, such "an important principle of customary international law" would not be held to have been "tacitly dispensed with, in the absence of any words making clear an intention to do so" (Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 42, para. 50).

11. The individual rights of Mexican nationals under paragraph 1 (b) of Article 36 of the Vienna Convention are, indeed, rights "which are to be asserted, at any rate in the first place, within the domestic legal system of the United States" (para. 40 of the Judgment). In principle, only when that process is completed and the remedies for the violations are finally unavailable, could Mexico take up the case in the form of an espousal of individual claims before this Court. However, the LaGrand case showed that the wide range of possible local remedies in criminal justice procedures in the United States tend to be exhausted only a short time before the execution of individuals under sentence of death. In consequence, there is a risk that applications based on diplomatic protection with regard to such individuals will be filed with this Court in circumstances where the latter would be unable usefully to address them.

12. In the special circumstances of the present case, at the time when the Application was filed, all the Mexican nationals concerned were already on death row and therefore human lives were at stake. In these circumstances, to demand that all the local remedies for the alleged violation of Article 36, paragraph 1, should have been completely exhausted before Mexico could exercise its right of diplomatic protection of these nationals, could lead to the

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absurd result of this Court having to rule at a point in time when its ruling could have no practical effect. That is why, exactly because most of the cases in question had not yet reached the final stage in the United States criminal proceedings, and in the hope that this Court would clarify the matter from the standpoint of international law, Mexico could bring its claims both in its own right and in the exercise of its right of diplomatic protection of its nationals.

13. To conclude, the Court should have applied the "preponderance" standard to the "mixed" Mexican claims brought under the heads both of Mexico’s own rights and of its right of diplomatic protection of its nationals, thus remaining consistent with its former jurisprudence on the law of diplomatic protection. Having found that the claims were essentially those of diplomatic protection, the Court should have held that the rule of exhaustion of local remedies was inapplicable not because Article 36 of the Vienna Convention on Consular Relations impliedly differs in kind from other treaty provisions creating rights of individuals, but rather because of the very special circumstances of the case at hand, as explained above.

[pp. 89-91 S.O. Parra–Aranguren] 20. Paragraph 40 of the Judgment concludes: "The duty to exhaust local remedies does not apply to such a request. Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection. Without needing to pronounce at this juncture on the issues raised by the procedural default rule, as explained by Mexico in paragraph 39 above, the Court accordingly finds that the second objection by the United States to admissibility cannot be upheld."

21. In my opinion, this conclusion is misleading. Paragraph 40 should have stated that the local remedies requirement does not apply when the injury is claimed to have been done directly to the rights of Mexico and not that it is not applicable to the claim made by Mexico in its own name. Now, the claims presented by Mexico in the exercise of diplomatic protection of its nationals are claims of Mexico in its own right, as was acknowledged in the well–known dictum of the 30 August 1924 Judgment of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case, where it was specified that "By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own

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rights – its right to ensure, in the person of its subjects, respect for the rules of international law." (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12.)

22. This principle is generally accepted and has recently been reproduced in Article 1, paragraph 1, of the Draft Articles on Diplomatic Protection prepared by the International Law Commission, indicating that: "Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a State adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another State."

23. Therefore, in the present case, the relevant element in deciding whether local remedies had to be exhausted is whether Mexico was directly injured by the actions of the United States. As the International Law Commission explains "The exhaustion of local remedies rule applies only to cases in which the claimant State has been injured ‘indirectly’, that is, through its national. It does not apply where the claimant State is directly injured by the wrongful act of another State, as here the State has a distinct reason of its own for bringing an international claim."

24. Consequently Article 9 of its Draft Articles on Diplomatic Protection provides that "[l]ocal remedies shall be exhausted where an international claim, or request for a declaratory judgment related to the claim, is brought preponderantly on the basis of an injury to a national or other person referred to in article 7 [8]."

25. However the International Law Commission also observes that "In practice it is difficult to decide whether the claim is ‘direct’ or ‘indirect’ where it is ‘mixed’, in the sense that it contains elements of both injury to the State and injury to the nationals of the State ... In the case of a mixed claim it is incumbent upon the tribunal to examine the different elements of the claim and to decide whether the direct or the indirect element is preponderant ... Closely related to the preponderance test is the sine qua non or ‘but for’ test, which asks whether the claim comprising elements of both direct and indirect injury would have been brought were it not for the claim on behalf of the injured national. If this question is answered negatively, the claim is an

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Nationality indirect one and local remedies must be exhausted. There is, however, little to distinguish the preponderance test from the ‘but for’ test. If a claim is preponderantly based on injury to a national this is evidence of the fact that the claim would not have been brought but for the injury to the national. In these circumstances the Commission preferred to adopt one test only - that of preponderance." (United Nations, Report of the International Law Commission, Fifty–Fifth Session (5 May–6 June and 7 July–8 August 2003), Official Records of the General Assembly, Fifty–Eighth Session, Supplement No. 10 (A/58/10), pp. 89–90).

26. In the present case Mexico has advanced, in its own right, a claim against the United States. However, the application of the exhaustion of local remedies rule depends not on whether Mexico presents the claim in its own right, but on whether Mexico was directly injured by the alleged actions of the United States.

27. Mexico maintains that there was a breach by the United States of the Vienna Convention, an unlawful act in the relations between the two States, on each occasion the United States authorities did not inform the Mexican nationals arrested of their rights under Article 36, paragraph 1 (b). Consequently, Mexico’s claim is a "mixed" claim, to use the terminology of the International Law Commission, as recognized in paragraph 40 of the Judgment where it is stated that there are "special circumstances of interdependence of the rights of the State and of individual rights". Therefore, it was for the Court to determine whether Mexico’s claim was preponderantly based on injury to a national and would not have been brought but for the injury to its national.

28. In my opinion, Mexico would not have presented its claim against the United States but for the injury suffered by its nationals. Consequently the local remedies rule applies to the claims "in its own right" submitted by Mexico in its first final submission and therefore the Court should have examined each of the individual cases to determine whether the local remedies had been exhausted, which do not include "approach to the executive for relief in the exercise of its discretionary powers ... remedies as of grace or those whose ‘purpose is to obtain a favour and not to vindicate a right’". If that was not case, the claims presented by Mexico in the exercise of diplomatic protection of its nationals were to be dismissed, unless covered by any of the customarily accepted exceptions to the local remedies rule, taking into

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consideration Article 10 of the Draft Articles on Diplomatic Protection prepared by the International Law Commission (United Nations, Report of the International Law Commission, Fifty–Fifth Session (5 May–6 June and 7 July–8 August 2003), Official Records of the General Assembly, Fifty–Eighth Session, Supplement No. 10 (A/58/10), pp. 88, 92–102). Therefore, it is not possible for me to agree with the conclusion reached in paragraph 40 of the Judgment.

[pp. 95-97 S.O. Tomka] 6. In order to be able to rule on the alleged violations by the United States of its obligations to the Mexican nationals under Artcile 36, paragraph 1, of the Vienna Convention, the Court relies on what is in my view a novel doctrine, without citing any prior jurisprudence in support thereof. The Court explains that, in the special circumstances of interpedendence of the rights of the State and of individual rights, the State (in this case Mexico) may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on its nationals under Article 36, paragraph 1 (b).

7. In the present case, in my view, the Court could only reach the conclusion that the individual rights of Mexican nationals had been violated if it accepted Mexico’s claim that that State was exercising its right to diplomatic protection. In order for a violation of individual rights (the rights of individual nationals), to be established, such rights have to be pleaded before an international court. When a State invokes the rights of its nationals, it acts in its own name on their behalf, on account of the wrong done to them: in other words, that State exercises displomatic protection. Mexico’s main reason for bringing the case before the Court was the alleged wrong done to its nationals. It is its nationals – and their fate – with which Mexico is primarily concerned. In order to give them a final chance within the United States judicial system, it was vital to establish violations by the United States of its obligations to Mexican nationals under the Vienna Convention, and the resultant injury to them. In my view, it is the violation of the rights of an individual and the wrong done to that individual, rather than the violation of a right of Mexico and the resultant injury to that State, that may have a certain role to play in the context of criminal proceedings in the United States.

8. If this case is viewed in the context of diplomatic protection, we cannot simply ignore the United States objection that the Mexican national have failed to exhaust local remedies.

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9. …

10. The International Law Commission, which is currently preparing draft articles on diplomatic protection, has framed four exceptions to the local remedies rule. Only the first of these concerns us here. Under this exception, there is no need to exhaust local remedies when they provide no reasonable possibility of effective redress. It is for the claimant to prove “that in the circumstances of the case, and having regard to the legal system of the respondent State, there is no reasonable possibility of an effective redress” (Report of the International Law Commission, 2003, United Nations doc. A/58/10, p. 93, para.3).

11. Mexico claims that no single court in the United States has ever granted a judicial remedy for a violation of Article 36 of the Vienna Convention.

12. Although the United States maintains that almost all of the 52 cases put in issue by Mexico before the Court (save for three, leaving 49) remain pending, many of them not yet having gone beyond the first direct appeal of the conviction, it has on the other hand failed to refute Mexico’s criticism of the practice of the United States courts of consistently refusing any form of relief for the violation of an obligation under Article 36 of the Vienna Convention.

13. It would thus have been possible for the Court to conclude that Mexico has shown that the condition of exhaustion of local remedies did not apply in the present case to its claim under the head of diplomatic protection.

[pp. 106-107 S.O. Sepúlveda] 22. It is believed that the Court, in response to Mexico’s submission, should have recognized, as a matter of its right to exercise diplomatic protection, the espousal by Mexico at the international level of the claims of the 52 Mexican nationals whose individual rights have been denied, amounting to the denial of justice through the judicial process of the United States. Such a recognition would have been particularly relevant in the cases of Mr. Fierro Reyna, Mr. Moreno Ramos and Mr. Torres Aguilera, three cases in which all judicial remedies have been exhausted. But the right of diplomatic protection of Mexico is also valid in the case of the other 49 Mexican nationals, since the application of the

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doctrine of procedural default by United States courts means, for all practical purposes, that there are no remedies to exhaust, and that the futility rule becomes fully operative, as will be explained later on.

23. Had the Court followed its previous jurisprudence and applied it in the present case, it would have been acting in line with the LaGrand Judgment, where the Court rejected the argument made by the United States that "the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the laws of its nationals through diplomatic protection, are legally different concepts" (LaGrand, Judgment, I.C.J. Reports 2001, p. 493, para. 76). The Court also rejected in LaGrand the contention of the United States that "rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance" (ibid.). One would have thought that these claims by the United States were put to rest, definitively and convincingly by the Court when it stated that: "the Court concludes that Article 36, paragraph 1, 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, Judgment, I.C.J. Reports 2001, p. 494, para. 77.)

24. If individual rights were violated in the LaGrand case, and if individual rights are being violated in the present case, then it follows from these premises that there is only one legal, obvious and necessary conclusion: that the individual rights of the 52 Mexican nationals may be invoked in this Court by Mexico. A contrary conclusion is incompatible with the decision of the Court in the LaGrand Judgment.

Case Concerning Certain Property (Liechtenstein v. Germany) Preliminary Objections Judgment of 10 February 2005 [pp. 38-39 D.O. Kooijmans] 37. Finally, Germany contends that Liechtenstein’s application is not admissible since the Liechtenstein nationals have not exhausted the available local remedies.

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38. Liechtenstein’s Application contains a "mixed" claim, combining claims in its own right and also in the exercise of diplomatic protection of some of its citizens. In so far as this claim refers to the infringement of its sovereignty and neutral status, there is no requirement of the exhaustion of local remedies since that part of the claim is brought by the Applicant in its own right (Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, p. 36, para.40).

39. In so far as Liechtenstein’s claim is a claim in the exercise of diplomatic protection of its nationals, it can safely be maintained that the then Reigning Prince has exhausted all available local remedies, including an appeal to the European Court of Human Rights. Liechtenstein’s claim on his behalf is thus also admissible. With regard to the other Liechtenstein nationals, Liechtenstein submits that in their cases exhaustion of local remedies is not necessary, as these have already been shown to be futile in the case of the then Reigning Prince. That argument may sound persuasive, but it does not answer the underlying questions of why and on what ground the other Liechtenstein nationals could have been expected to seek redress from a German court. Unlike the Prince, whose former property − the Van Laer painting − was present on German territory, these other Liechtenstein nationals have no cause for action in the German courts, since their property never found itself within German national jurisdiction; and there is no decision against which they could have appealed.

40. That issue, however, is not an issue with regard to which the requirement of the exhaustion of local remedies is relevant. The question is simply whether Liechtenstein’s contention of a breach by Germany of its obligations vis-à-vis those other Liechtenstein nationals can pass legal scrutiny, but that is a matter for the merits, viz, whether Germany as a result of the decisions of its courts has breached an international obligation towards them.

41. Since Liechtenstein claims in its own right and also in the exercise of diplomatic protection on behalf of one of its citizens - the then Reigning Prince - who has exhausted all local remedies, Germany’s sixth preliminary objection has no merit.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda)

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Judgment of 19 December 2005

[pp. 275-276] 328. The Court will now consider the DRC’s challenge to the admissibility of the second counter-claim on the ground that it is in reality a claim founded on diplomatic protection and as such fails, as Uganda has not shown that the requirements laid down by international law for the exercise of diplomatic protection have been satisfied.

329. The Court notes that Uganda relies on two separate legal bases in its allegations concerning the maltreatment of persons. With regard to diplomats, Uganda relies on Article 29 of the Vienna Convention on Diplomatic Relations. With regard to other Ugandan nationals not enjoying diplomatic status, Uganda grounds its claim in general rules of international law relating to diplomatic relations and in the international minimum standard relating to the treatment of foreign nationals who are present on a State’s territory. The Court will now address both of these bases in turn.

330. First, as to alleged acts of maltreatment committed against Ugandan diplomats finding themselves both within embassy premises and elsewhere, the Court observes that Uganda’s second counter-claim aims at obtaining reparation for the injuries suffered by Uganda itself as a result of the alleged violations by the DRC of Article 29 of the Vienna Convention on Diplomatic Relations. Therefore Uganda is not exercising diplomatic protection on behalf of the victims but vindicating its own rights under the Vienna Convention. Accordingly, the Court finds that the failure to exhaust local remedies does not pose a barrier to Uganda’s counter-claim under Article 29 of the Vienna Convention on Diplomatic Relations, and the claim is thus admissible.

331. As to acts of maltreatment committed against other persons on the premises of the Ugandan Embassy at the time of the incidents, the Court observes that the substance of this counter-claim currently before the Court as a direct claim, brought by Uganda in its sovereign capacity, concerning its Embassy in Kinshasa, falls within the ambit of Article 22 of the Vienna Convention on Diplomatic Relations. Consequently, the

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objection advanced by the DRC to the admissibility of this part of Uganda’s second counter-claim cannot be upheld, and this part of the counter-claim is also admissible.

332. The Court turns now to the part of Uganda’s second counter-claim which concerns acts of maltreatment by FAC troops of Ugandan nationals not enjoying diplomatic status who were present at Ndjili International Airport as they attempted to leave the country.

333. The Court notes that Uganda bases this part of the counter-claim on the international minimum standard relating to the treatment of foreign nationals who are present on a State’s territory. The Court thus considers that this part of Uganda’s counter-claim concerns injury to the particular individuals in question and does not relate to a violation of an international obligation by the DRC causing a direct injury to Uganda. The Court is of the opinion that in presenting this part of the counter-claim Uganda is attempting to exercise its right to diplomatic protection with regard to its nationals. It follows that Uganda would need to meet the conditions necessary for the exercise of diplomatic protection as recognized in general international law, namely the requirement of Ugandan nationality of the claimants and the prior exhaustion of local remedies. The Court observes that no specific documentation can be found in the case file identifying the individuals concerned as Ugandan nationals. The Court thus finds that, this condition not being met, Uganda’s counter-claim concerning the alleged maltreatment of its nationals not enjoying diplomatic status at Ndjili International Airport is inadmissible.

[p. 381 D.O. Kateka] 69. I have voted against operative paragraph 11 of the dispositif, which upholds the objection of the DRC to the admissibility of the part of the second counter-claim relating to the maltreatment of persons other than Ugandan diplomats at Ndjili Airport on 20 August 1998. The invocation by Uganda of the international minimum standard relating to the treatment of foreign nationals is considered by the Court as an exercise of diplomatic protection. Thus according to the Court, Uganda would need to meet the conditions necessary for the exercise of diplomatic protection, namely, the requirement of Ugandan nationality of the claimants and the prior exhaustion of local remedies. The Court avoids dealing with the

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issue of these persons on the grounds that it has not been established that they were Ugandan nationals. In my view, the Court should have invoked international humanitarian law to protect the rights of these persons. The Court would seem not to have given enough weight to violations of the rights of these persons at Ndjili Airport by the DRC.

*

7. MINORITIES

8. LAW OF ALIENS *

8.1. General Questions

8.2. Protection of Property

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 231] 179. 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 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.

180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.

9. HUMAN RIGHTS

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

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issue of these persons on the grounds that it has not been established that they were Ugandan nationals. In my view, the Court should have invoked international humanitarian law to protect the rights of these persons. The Court would seem not to have given enough weight to violations of the rights of these persons at Ndjili Airport by the DRC.

*

7. MINORITIES

8. LAW OF ALIENS *

8.1. General Questions

8.2. Protection of Property

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 231] 179. 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 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.

180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.

9. HUMAN RIGHTS

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

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[p. 494] 78. At the hearings, Germany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right, but has today assumed the character of a human right. In consequence, Germany added, "the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative". The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002 [p. 284 S.O. Mavungu] 44. Generally, the main aims of the 1979 Convention72 are to protect the dignity of women and to allow them full enjoyment of their rights. On an extensive interpretation, it may be concluded that every violation of a right suffered by a woman by reason of being a woman would be covered by the Convention. Here, the Applicant is not seeking to have the alleged violations extended also to men in order that the discrimination should cease, but to secure the cessation of violent acts allgedly committed against women – in this case by armed groups – because they are being targeted as women.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[pp. 60-61] 124. Mexico has further contended that the right to consular notification and consular communication under the Vienna Convention is a fundamental human right that constitutes part of due process in criminal proceedings and should be guaranteed in the territory of each of the Contracting Parties to the Vienna Convention;

72

Convention on the Elimination of all Forms of Discrimination against Women of 18°December 1979.

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according to Mexico, this right, as such, is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. Whether or not the Vienna Convention rights are human rights is not a matter that this Court need decide. The Court would, however, observe that neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in that regard.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 177-178] 102. The participants in the proceedings before the Court also disagree whether the international human rights conventions to which Israel is party apply within the Occupied Palestinian Territory. Annex I to the report of the Secretary– General states: "4. Israel denies that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which it has signed, are applicable to the occupied Palestinian territory. It asserts that humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace." Of the other participants in the proceedings, those who addressed this issue contend that, on the contrary, both Covenants are applicable within the Occupied Palestinian Territory.

103. On 3 October 1991 Israel ratified both the International Covenant on Economic, Social and Cultural Rights of 19 December 1966 and the International Covenant on Civil and Political Rights of the same date, as well as the United Nations Convention on the Rights of the Child of 20 November 1989. It is a party to these three instruments.

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104. In order to determine whether these texts are applicable in the Occupied Palestinian Territory, the Court will first address the issue of the relationship between international humanitarian law and human rights law and then that of the applicability of human rights instruments outside national territory.

105. In its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, the Court had occasion to address the first of these issues in relation to the International Covenant on Civil and Political Rights. In those proceedings certain States had argued that "the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict" (I.C.J. Reports 1996 (I), p. 239, para. 24). The Court rejected this argument, stating that: "the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities." (Ibid., p. 240, para. 25.)

106. 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

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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.

[pp. 178-180] 108. The scope of application of the International Covenant on Civil and Political Rights is defined by Article 2, paragraph 1, thereof, which provides: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." This provision can be interpreted as covering only individuals who are both present within a State’s territory and subject to that State’s jurisdiction. It can also be construed as covering both individuals present within a State’s territory and those outside that territory but subject to that State’s jurisdiction. The Court will thus seek to determine the meaning to be given to this text.

109. 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. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina (case No. 52/79, López Burgos v. Uruguay; case No. 56/79, Lilian Celiberti de Casariego v. Uruguay). It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany (case No. 106/81, Montero v. Uruguay). The travaux préparatoires of the Covenant confirm the Committee’s interpretation of Article 2 of that instrument. These show that, in adopting the wording chosen, the

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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–à–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. V, para. 4 (1955)). In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question "whether individuals resident in the occupied territories were indeed subject to Israel’s jurisdiction" for purposes of the application of the Covenant (CCPR/C/SR.1675, para. 21). Israel took the position that "the Covenant and similar instruments did not apply directly to the current situation in the occupied territories" (ibid., para. 27). The Committee, in its concluding observations after examination of the report, expressed concern at Israel’s attitude and pointed "to the long–standing presence of Israel in [the occupied] territories, Israel’s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein" (CCPR/C/79/Add.93, para. 10). In 2003 in face of Israel’s consistent position, to the effect that "the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ...", the Committee reached the following conclusion: "in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law" (CCPR/CO/78/ISR, para. 11).

111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.

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[pp. 180-181] 112. 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 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". It is not without relevance to recall in this regard the position taken by Israel in its reports to the Committee on Economic, Social and Cultural Rights. In its initial report to the Committee of 4 December 1998, Israel provided "statistics indicating the enjoyment of the rights enshrined in the Covenant by Israeli settlers in the occupied Territories". The Committee noted that, according to Israel, "the Palestinian population within the same jurisdictional areas were excluded from both the report and the protection of the Covenant" (E/C.12/1/Add. 27, para. 8). The Committee expressed its concern in this regard, to which Israel replied in a further report of 19 October 2001 that it has "consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction" (a formula inspired by the language of the International Covenant on Civil and Political Rights). This position, continued Israel, is "based on the well–established distinction between human rights and humanitarian law under international law". It added: "the Committee’s mandate cannot relate to events in the West Bank and the Gaza Strip, inasmuch as they are part and parcel of the context of armed conflict as distinct from a relationship of human rights" (E/1990/6/Add. 32, para. 5). In view of these observations, the Committee reiterated its concern about Israel’s position and reaffirmed "its view that the State party’s obligations under the Covenant apply to all territories and populations under its effective control" (E/C.12/1/Add.90, paras. 15 and 31). For the reasons explained in paragraph 106 above, the Court cannot accept Israel’s view. It would also observe that the territories occupied by Israel have for over 37 years been subject to its territorial jurisdiction as the occupying Power. In the exercise of the powers available to it on this basis, Israel is bound by the provisions of

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the International Covenant on Economic, Social and Cultural Rights. Furthermore, it is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities.

[p. 181] 113. As regards the Convention on the Rights of the Child of 20 November

1989, that instrument contains an Article 2 according to which "States Parties shall respect and ensure the rights set forth in the ... Convention to each child within their jurisdiction ...". That Convention is therefore applicable within the Occupied Palestinian Territory.

[pp. 189-192] 132. From the information submitted to the Court, particularly the report of the Secretary–General, it appears that the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.

133. That construction, the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto). Such restrictions are most marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its suburbs. They are aggravated by the fact that the access gates are few in number in certain sectors and opening hours appear to be restricted and unpredictably applied. For example, according to the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, "Qalqiliya, a city with a population of 40,000, is completely surrounded by the Wall and residents can only enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m." (Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolution 1993/2 A and entitled "Question of the

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Violation of Human Rights in the Occupied Arab Territories, including Palestine", E/CN.4/2004/6, 8 September 2003, para. 9.) There have also been serious repercussions for agricultural production, as is attested by a number of sources. According to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories "an estimated 100,000 dunums [approximately 10,000 hectares] of the West Bank’s most fertile agricultural land, confiscated by the Israeli Occupation Forces, have been destroyed during the first phase of the wall construction, which involves the disappearance of vast amounts of property, notably private agricultural land and olive trees, wells, citrus grows and hothouses upon which tens of thousands of Palestinians rely for their survival" (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, para. 26). Further, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that "Much of the Palestinian land on the Israeli side of the Wall consists of fertile agricultural land and some of the most important water wells in the region" and adds that "Many fruit and olive trees had been destroyed in the course of building the barrier." (E/CN.4/2004/6, 8 September 2003, para. 9.) The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights states that construction of the wall "cuts off Palestinians from their agricultural lands, wells and means of subsistence" (Report by the Special Rapporteur of the United Nations 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, para. 49). In a recent survey conducted by the World Food Programme, it is stated that the situation has aggravated food insecurity in the region, which reportedly numbers 25,000 new beneficiaries of food aid (report of the Secretary–General, para. 25). It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water.

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This is also attested by a number of different information sources. Thus the report of the Secretary–General states generally that "According to the Palestinian Central Bureau of Statistics, so far the Barrier has separated 30 localities from health services, 22 from schools, 8 from primary water sources and 3 from electricity networks." (Report of the Secretary–General, para. 23.) The Special Rapporteur of the United Nations Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that "Palestinians between the Wall and Green Line will effectively be cut off from their land and workplaces, schools, health clinics and other social services." (E/CN.4/2004/6, 8 September 2003, para. 9.) In relation specifically to water resources, the Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights observes that "By constructing the fence Israel will also effectively annex most of the western aquifer system (which provides 51 per cent of the West Bank’s water resources)." (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) Similarly, in regard to access to health services, it has been stated that, as a result of the enclosure of Qalqiliya, a United Nations hospital in that town has recorded a 40 per cent decrease in its caseload (report of the Secretary–General, para. 24). At Qalqiliya, according to reports furnished to the United Nations, some 600 shops or businesses have shut down, and 6,000 to 8,000 people have already left the region (E/CN.4/2004/6,

8 September 2003,

para. 10;

E/CN.4/2004/10/Add.2,

31 October 2003, para. 51). The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights has also observed that "With the fence/wall cutting communities off from their land and water without other means of subsistence, many of the Palestinians living in these areas will be forced to leave." (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the "freedom to choose [their] residence". In addition, however, in the view of the Court, since a significant number of Palestinians have already been compelled by the construction of the wall and its associated régime to depart from certain areas, a process that will continue as more of the wall is built, that construction, coupled with

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the establishment of the Israeli settlements mentioned in paragraph 120 above, is tending to alter the demographic composition of the Occupied Palestinian Territory.

134. To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child. Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above.

[pp. 192-194] 136. 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. In this respect, the Court would however recall that the communication notified by Israel to the Secretary– General of the United Nations under Article 4 of the International Covenant on Civil and Political Rights concerns only Article 9 of the Covenant, relating to the right to freedom and security of person (see paragraph 127 above); Israel is accordingly bound to respect all the other provisions of that instrument. 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. On the other hand, Article 12, paragraph 3, of that instrument provides that restrictions on liberty of movement as guaranteed under that Article

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"shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant". As for the International Covenant on Economic, Social and Cultural Rights, Article 4 thereof contains a general provision as follows: "The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society." 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 1. 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. As the Human Rights Committee put it, they "must conform to the principle of proportionality" and "must be the least intrusive instrument amongst those which might achieve the desired result" (CCPR/C/21/Rev.1/Add.9, General Comment No. 27, para. 14). On the basis of the information available to it, the Court finds that these conditions are not met in the present instance. The Court would further observe that the restrictions on the enjoyment by the Palestinians living in the territory occupied by Israel of their economic, social and cultural rights, resulting from Israel’s construction of the wall, fail to meet a condition laid down by Article 4 of the International Covenant on Economic, Social and Cultural Rights, that is to say that their implementation must be "solely for the purpose of promoting the general welfare in a democratic society".

137. To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe

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a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.

[p. 213 S.O. Higgins] 25. After its somewhat light treatment of international humanitarian law, the Court turns to human rights law. I agree with the Court’s finding about the continued relevance of human rights law in the occupied territories. I also concur in the findings made at paragraph 134 as regards Article 12 of the International Covenant on Civil and Political Rights.

26. At the same time, it has to be noted that there are established treaty bodies whose function it is to examine in detail the conduct of States parties to each of the Covenants. Indeed, the Court’s response as regards the International Covenant on Civil and Political Rights notes both the pertinent jurisprudence of the Human Rights Committee and also the concluding observations of the Committee on Israel’s duties in the occupied territories.

27. So far as the International Covenant on Economic, Social and Cultural Rights is concerned, the situation is even stranger, given the programmatic requirements for the fulfilment of this category of rights. The Court has been able to do no more than observe, in a single phrase, that the wall and its associated régime "impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights ..." (para. 134). For both Covenants, one may wonder about the appropriateness of asking for advisory opinions from the Court on compliance by States parties with such obligations, which are monitored, in much greater detail, by a treaty body established for that purpose. It could hardly be an answer that the General Assembly is not setting any more general precedent, because while many, many States are not in compliance with their obligations under the two Covenants, the Court is being asked to look only at the conduct of Israel in this regard.

404

Human Rights Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 242-245] 215. The Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations. In this regard, the Court needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose.

216. The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In this Advisory Opinion the Court found 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." (I.C.J. Reports 2004, p. 178, para. 106.) It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. 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).

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217. The Court considers that the following instruments in the fields of international humanitarian law and international human rights law are applicable, as relevant, in the present case: − Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907. Neither the DRC nor Uganda are parties to the Convention. However, the Court reiterates that "the provisions of the Hague Regulations have become part of customary law" (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 172, para. 89) and as such are binding on both Parties; − Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949. The DRC’s (at the time Republic of the Congo (Léopoldville)) notification of succession dated 20 February 1961 was deposited on 24 February 1961, with retroactive effect as from 30 June 1960, the date on which the DRC became independent; Uganda acceded on 18 May 1964; − International Covenant on Civil and Political Rights of 19 December 1966. The DRC (at the time Republic of Zaire) acceded to the Covenant on 1 November 1976; Uganda acceded on 21 June 1995; − Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. The DRC (at the time Republic of Zaire) acceded to the Protocol on 3 June 1982; Uganda acceded on 13 March 1991; − African Charter on Human and Peoples’ Rights of 27 June 1981. The DRC (at the time Republic of Zaire) acceded to the Charter on 20 July 1987; Uganda acceded on 10 May 1986; − Convention on the Rights of the Child of 20 November 1989. The DRC (at the time Republic of Zaire) ratified the Convention on 27 September 1990 and Uganda on 17 August 1990; − Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 25 May 2000. The Protocol

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entered into force on 12 February 2002. The DRC ratified the Protocol on 11 November 2001; Uganda acceded on 6 May 2002.

218. The Court moreover emphasizes that, under common Article 2 of the four Geneva Conventions of 12 August 1949, "[i]n addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

219. In view of the foregoing, the Court finds that the acts committed by the UPDF and officers and soldiers of the UPDF (see paragraphs 206-211 above) are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These obligations are binding on the Parties as customary international law. Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties: − Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations of an occupying Power; − International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7; − First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2; − African Charter on Human and Peoples’ Rights, Articles 4 and 5; − Convention on the Rights of the Child, Article 38, paragraphs 2 and 3; − Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

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220. The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory.

[pp. 344-346 S.O. Simma] 30. In addition to constituting breaches of international humanitarian law, the maltreatment of the persons in question at Ndjili International Airport was also in violation of international human rights law. In paragraph 216 of its Judgment, the Court recalls its finding in the Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, according to which "the protection offered by human rights conventions does not cease in case of armed conflict ..." (I.C.J. Reports 2004, p. 178, para. 106). In its Advisory Opinion, the Court continued: "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." (Ibid.) In my view, the maltreatment of the individuals at the airport falls under the third category of the situations mentioned: it is a matter of both international humanitarian and international human rights law.

31. Applying international human rights law to the individuals maltreated by the DRC at Ndjili International Airport, the conduct of the DRC would violate provisions of the International Covenant on Civil and Political Rights of 19 December 1966, the African Charter on Human and Peoples’ Rights of 27 June 1981, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, to all of which both the DRC and Uganda are parties. Specifically, under the International Covenant on Civil and Political Rights, the conduct of the DRC would violate Article 7 ("No one shall be subjected to ... cruel, inhuman or degrading treatment or punishment."), Article 9, paragraph 1 ("Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law"), Article 10,

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paragraph 1 ("All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."), and Article 12, paragraphs 1 and 2 ("1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement ... 2. Everyone shall be free to leave any country, including his own."). Under the African Charter, the conduct of the DRC would violate Article 4 ("Human beings are inviolable. Every human being shall be entitled to respect for ... the integrity of his person. No one may be arbitrarily deprived of this right."), Article 5 ("Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly ... cruel, inhuman or degrading punishment and treatment shall be prohibited."), Article 6 ("Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained."), as well as Article 12, paragraphs 1 and 2 ("1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country ..."). Finally, although the conduct of the DRC at Ndjili International Airport did not rise to the level of torture, it was nevertheless in violation of Article 16, paragraph 1, of the Convention Against Torture which reads as follows: "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

[pp. 347-349 S.O. Simma] 35. As to the question of standing of a claimant State for violations of human rights committed against persons which might or might not possess the nationality of that State, the jurisdiction of the Court not being at issue, the contemporary law of State responsibility provides a positive answer as well. The International Law Commission’s 2001 draft on Responsibility of States for Internationally Wrongful Acts provides not only for the invocation of responsibility by an injured State (which quality Uganda would possess if it had been able to establish the Ugandan nationality of the

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individuals at the airport) but also for the possibility that such responsibility can be invoked by a State other than an injured State. In this regard, Article 48 of the draft reads as follows: "Article 48 Invocation of responsibility by a State other than an injured State

1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole.

2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.

3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1."73 The obligations deriving from the human rights treaties cited above and breached by the DRC are instances par excellence of obligations that are owed to a group of States including Uganda, and are established for the protection of a collective interest of the States parties to the Covenant.

36. With regard to the customary requirement of the exhaustion of local remedies, this condition only applies if effective remedies are available in the first place (cf. ILC Article 44 (b) and the commentary thereto). In view of the circumstances of the airport incident and, more generally, of the political situation prevailing in the DRC at the time of the Ugandan

73

Report of the ILC on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth Session, Suppl. No. 10 (A/56/10), p. 56.

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invasion, I tend to agree with the Ugandan argument that attempts by the victims of that incident to seek justice in the Congolese courts would have remained futile (cf. para. 317 of the Judgment). Hence, no obstacle would have stood in the way for Uganda to raise the violation of human rights of the persons maltreated at Ndjili International Airport, even if these individuals did not possess its nationality.

37. In summary of this issue, Uganda would have had standing to bring, and the Court would have had jurisdiction to decide upon a claim both under international humanitarian law and international human rights law for the maltreatment of the individuals at the airport, irrespective of the nationality of these individuals. The specific construction of the rights and obligations under the Fourth Geneva Convention as well as the relevant provisions of Protocol I Additional to this Convention not only entitles every State party to raise these violations but even creates an obligation to ensure respect for the humanitarian law in question. The rules of the international law of State responsibility lead to an analogous result as concerns the violations of human rights of the persons concerned by the Congolese soldiers. Uganda chose the avenue of diplomatic protection and failed. A reminder by the Court of the applicability of international humanitarian and human rights law standards and of Uganda’s standing to raise violations of the obligations deriving from these standards by the DRC would, in my view, not have gone ultra petita partium.

[pp. 349-350 S.O. Simma] 38. Let me conclude with a more general observation on the community interest underlying international humanitarian and human rights law. I feel compelled to do so because of the notable hesitation and weakness with which such community interest is currently manifesting itself vis-à-vis the ongoing attempts to dismantle important elements of these branches of international law in the proclaimed "war" on international terrorism.

39. As against such undue restraint it is to be remembered that at least the core of the obligations deriving from the rules of international humanitarian and human rights law are valid erga omnes. According to the Commentary of the ICRC to Article 4 of the Fourth Geneva Convention, "[t]he spirit which inspires the Geneva Conventions naturally makes it desirable that they should be applicable ‘erga omnes’, since they may be regarded as the codification of accepted principles". In its Advisory Opinion on the Legality of the Threat or

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Use of Nuclear Weapons the Court stated that "a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary 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 1996 (I), p. 257, para. 79). Similarly, in the Wall Advisory Opinion, the Court affirmed that the rules of international humanitarian law "incorporate obligations which are essentially of an erga omnes character" (I.C.J. Reports 2004, p. 199, para. 157).

40. As the Court indicated in the Barcelona Traction case, obligations erga omnes are by their very nature "the concern of all States" and, "[i]n 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, p. 32, para. 33). In the same vein, the International Law Commission has stated in the Commentaries to its Articles on the Responsibility of States for Internationally Wrongful Acts, that there are certain rights in the protection of which, by reason of their importance, "all States have a legal interest ..." (A/56/10 at p. 278)74.

41. If the international community allowed such interest to erode in the face not only of violations of obligations erga omnes but of outright attempts to do away with these fundamental duties, and in their place to open black holes in the law in which human beings may be disappeared and deprived of any legal protection whatsoever for indefinite periods of time,

then

international

law,

for

me,

would

become

much

less

worthwhile.

74

Concerning the specific question of standing in case of breaches of obligations erga omnes the Institute of International Law, in a resolution on the topic of obligations of this nature adopted at its Krakow Session of 2005, accepted the following provisions: "Article 3 In the event of there being a jurisdictional link between a State alleged to have committed a breach of an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to bring a claim to the International Court of Justice or other international judicial institution in relation to a dispute concerning compliance with that obligation. Article 4 The International Court of Justice or other international judicial institution should give a State to which an obligation erga omnes is owed the possibility to participate in proceedings pending before the Court or that institution and relating to that obligation. Specific rules should govern this participation."

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10. LAW OF ARMED CONFLICTS / INTERNATIONAL HUMANITARIAN LAW

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[p. 167] 78. 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.

[p. 172] 89. As regards international humanitarian law, the Court would first note that Israel is not a party to the Fourth Hague Convention of 1907, to which the Hague Regulations are annexed. The Court observes that, in the words of the Convention, those Regulations were prepared "to revise the general laws and customs of war" existing at that time. Since then, however, the International Military Tribunal of Nuremberg has found that the "rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war" (Judgment of the International Military Tribunal of Nuremberg, 30 September and 1 October 1946, p. 65). The Court itself reached the same conclusion when examining the rights and duties of belligerents in their conduct of military operations (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75). 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.

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The Court also observes that, pursuant to Article 154 of the Fourth Geneva Convention, that Convention is supplementary to Sections II and III of the Hague Regulations. Section III of those Regulations, which concerns "Military authority over the territory of the hostile State", is particularly pertinent in the present case.

[pp. 173-177] 90. … with regard to the Fourth Geneva Convention, differing views have been expressed by the participants in these proceedings. Israel, contrary to the great majority of the other participants, disputes the applicability de jure of the Convention to the Occupied Palestinian Territory. In particular, in paragraph 3 of Annex I to the report of the Secretary–General, entitled "Summary Legal Position of the Government of Israel", it is stated that Israel does not agree that the Fourth Geneva Convention "is applicable to the occupied Palestinian Territory", citing "the lack of recognition of the territory as sovereign prior to its annexation by Jordan and Egypt" and inferring that it is "not a territory of a High Contracting Party as required by the Convention".

91. The Court would recall that the Fourth Geneva Convention was ratified by Israel on 6 July 1951 and that Israel is a party to that Convention. Jordan has also been a party thereto since 29 May 1951. Neither of the two States has made any reservation that would be pertinent to the present proceedings. Furthermore, Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral undertaking valid. It concluded, however, that it "[was] not as a depositary in a position to decide whether" "the request [dated 14 June 1989] from the Palestine Liberation Movement in the name of the ‘State of Palestine’ to accede" inter alia to the Fourth Geneva Convention "can be considered as an instrument of accession".

92. Moreover, for the purpose of determining the scope of application of the Fourth Geneva Convention, it should be recalled that under common Article 2 of the four Conventions of 12 August 1949:

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"In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

93. After the occupation of the West Bank in 1967, the Israeli authorities issued an order No. 3 stating in its Article 35 that: "the Military Court ... must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the Protection of Civilian Persons in Time of War with respect to judicial procedures. In case of conflict between this Order and the said Convention, the Convention shall prevail." Subsequently, the Israeli authorities have indicated on a number of occasions that in fact they generally apply the humanitarian provisions of the Fourth Geneva Convention within the occupied territories. However, according to Israel’s position as briefly recalled in paragraph 90 above, that Convention is not applicable de jure within those territories because, under Article 2, paragraph 2, it applies only in the case of occupation of territories falling under the sovereignty of a High Contracting Party involved in an armed conflict. Israel explains that Jordan was admittedly a party to the Fourth Geneva Convention in 1967, and that an armed conflict broke out at that time between Israel and Jordan, but it goes on to observe that the territories occupied by Israel subsequent to that conflict had not previously fallen under Jordanian sovereignty. It infers from this that that Convention is not applicable de jure in those territories. According however to the great majority of other participants in the proceedings, the Fourth Geneva Convention is applicable to those territories pursuant

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to Article 2, paragraph 1, whether or not Jordan had any rights in respect thereof prior to 1967.

94. 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. 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 Objections, I.C.J. Reports 1996 (II), p. 812, para. 23; see, similarly, Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports 1999 (II), p. 1059, para. 18, and Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, para. 37.)

95. 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. 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.

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This interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find themselves, in whatever way, in the hands of the occupying Power. Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention. That interpretation is confirmed by the Convention’s travaux préparatoires. 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.

96. The Court would moreover note that the States parties to the Fourth Geneva Convention approved that interpretation at their Conference on 15 July 1999. They issued a statement in which they "reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". Subsequently, on 5 December 2001, the High Contracting Parties, referring in particular to Article 1 of the Fourth Geneva Convention of 1949, once again reaffirmed the "applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem". They further reminded the Contracting Parties participating in the Conference, the parties to the conflict, and the State of Israel as occupying Power, of their respective obligations.

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97. Moreover, the Court would observe that the ICRC, whose special position with respect to execution of the Fourth Geneva Convention must be "recognized and respected at all times" by the parties pursuant to Article 142 of the Convention, has also expressed its opinion on the interpretation to be given to the Convention. In a declaration of 5 December 2001, it recalled that "the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem".

98. The Court notes that the General Assembly has, in many of its resolutions, taken a position to the same effect. Thus on 10 December 2001 and 9 December 2003, in resolutions 56/60 and 58/97, it reaffirmed "that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Occupied Palestinian Territory, including East Jerusalem, and other Arab territories occupied by Israel since 1967".

99. The Security Council, for its part, had already on 14 June 1967 taken the view in resolution 237 (1967) that "all the obligations of the Geneva Convention relative to the Treatment of Prisoners of War ... should be complied with by the parties involved in the conflict". Subsequently, on 15 September 1969, the Security Council, in resolution 271 (1969), called upon "Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation". Ten years later, the Security Council examined "the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967". In resolution 446 (1979) of 22 March 1979, the Security Council considered that those settlements had "no legal validity" and affirmed "once more that the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem". It called "once more upon Israel, as the occupying Power, to abide scrupulously" by that Convention.

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On 20 December 1990, the Security Council, in resolution 681 (1990), urged "the Government of Israel to accept the de jure applicability of the Fourth Geneva Convention ... to all the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention". It further called upon "the high contracting parties to the said Fourth Geneva Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof". Lastly,

in

resolutions 799 (1992)

of

18 December 1992

and

904 (1994)

of

18 March 1994, the Security Council reaffirmed its position concerning the applicability of the Fourth Geneva Convention in the occupied territories.

100. The Court would note finally that the Supreme Court of Israel, in a judgment dated 30 May 2004, also found that: "The military operations of the [Israeli Defence Forces] in Rafah, to the extent they affect civilians, are governed by Hague Convention IV Respecting the Laws and Customs of War on Land 1907 ... and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949."

101. 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. Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out. The Court accordingly finds that that Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories.

[pp. 177-178] 102. The participants in the proceedings before the Court also disagree whether the international human rights conventions to which Israel is party apply within the Occupied Palestinian Territory. Annex I to the report of the Secretary– General states:

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"4. Israel denies that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which it has signed, are applicable to the occupied Palestinian territory. It asserts that humanitarian law is the protection granted in a conflict situation such as the one in the West Bank and Gaza Strip, whereas human rights treaties were intended for the protection of citizens from their own Government in times of peace." Of the other participants in the proceedings, those who addressed this issue contend that, on the contrary, both Covenants are applicable within the Occupied Palestinian Territory.

103. On 3 October 1991 Israel ratified both the International Covenant on Economic, Social and Cultural Rights of 19 December 1966 and the International Covenant on Civil and Political Rights of the same date, as well as the United Nations Convention on the Rights of the Child of 20 November 1989. It is a party to these three instruments.

104. In order to determine whether these texts are applicable in the Occupied Palestinian Territory, the Court will first address the issue of the relationship between international humanitarian law and human rights law and then that of the applicability of human rights instruments outside national territory.

105. In its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, the Court had occasion to address the first of these issues in relation to the International Covenant on Civil and Political Rights. In those proceedings certain States had argued that "the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict" (I.C.J. Reports 1996 (I), p. 239, para. 24). The Court rejected this argument, stating that:

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"the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities." (Ibid., p. 240, para. 25.)

106. 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.

[pp. 183-184] 119. The Court notes that the route of the wall as fixed by the Israeli Government includes within the "Closed Area" (see paragraph 85 above) some 80 per cent of the settlers living in the Occupied Palestinian Territory. Moreover, it is apparent from an examination of the map mentioned in paragraph 80 above that the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem).

120. As regards these settlements, the Court notes that Article 49, paragraph 6, of the Fourth Geneva Convention provides: "The Occupying Power shall not deport or

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transfer parts of its own civilian population into the territory it occupies." That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory. In this respect, the information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, just cited. The Security Council has thus taken the view that such policy and practices "have no legal validity". It has also called upon "Israel, as the occupying Power, to abide scrupulously" by the Fourth Geneva Convention and: "to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories" (resolution 446 (1979) of 22 March 1979). The Council reaffirmed its position in resolutions 452 (1979) of 20 July 1979 and 465 (1980) of 1 March 1980. Indeed, in the latter case it described "Israel’s policy and practices of settling parts of its population and new immigrants in [the occupied] territories" as a "flagrant violation" of the Fourth Geneva Convention. The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

121. Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime

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create a "fait accompli" on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.

122. The Court recalls moreover that, according to the report of the Secretary–General, the planned route would incorporate in the area between the Green Line and the wall more than 16 per cent of the territory of the West Bank. Around 80 per cent of the settlers living in the Occupied Palestinian Territory, that is 320,000 individuals, would reside in that area, as well as 237,000 Palestinians. Moreover, as a result of the construction of the wall, around 160,000 other Palestinians would reside in almost completely encircled communities (see paragraphs 84, 85 and 119 above). In other terms, the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council (see paragraphs 75 and 120 above). There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing, as will be further explained in paragraph 133 below, to the departure of Palestinian populations from certain areas. That construction, along with measures taken previously, thus 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

[pp. 189-192] 132. From the information submitted to the Court, particularly the report of the Secretary–General, it appears that the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.

133. That construction, the establishment of a closed area between the Green Line and the wall itself and the creation of enclaves have moreover imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto). Such

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restrictions are most marked in urban areas, such as the Qalqiliya enclave or the City of Jerusalem and its suburbs. They are aggravated by the fact that the access gates are few in number in certain sectors and opening hours appear to be restricted and unpredictably applied. For example, according to the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, "Qalqiliya, a city with a population of 40,000, is completely surrounded by the Wall and residents can only enter and leave through a single military checkpoint open from 7 a.m. to 7 p.m." (Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the situation of human rights in the Palestinian territories occupied by Israel since 1967, submitted in accordance with Commission resolution 1993/2 A and entitled "Question of the Violation of Human Rights in the Occupied Arab Territories, including Palestine", E/CN.4/2004/6, 8 September 2003, para. 9.) There have also been serious repercussions for agricultural production, as is attested by a number of sources. According to the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories "an estimated 100,000 dunums [approximately 10,000 hectares] of the West Bank’s most fertile agricultural land, confiscated by the Israeli Occupation Forces, have been destroyed during the first phase of the wall construction, which involves the disappearance of vast amounts of property, notably private agricultural land and olive trees, wells, citrus grows and hothouses upon which tens of thousands of Palestinians rely for their survival" (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, para. 26). Further, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that "Much of the Palestinian land on the Israeli side of the Wall consists of fertile agricultural land and some of the most important water wells in the region" and adds that "Many fruit and olive trees had been destroyed in the course of building the barrier." (E/CN.4/2004/6, 8 September 2003,

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para. 9.) The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights states that construction of the wall "cuts off Palestinians from their agricultural lands, wells and means of subsistence" (Report by the Special Rapporteur of the United Nations 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, para. 49). In a recent survey conducted by the World Food Programme, it is stated that the situation has aggravated food insecurity in the region, which reportedly numbers 25,000 new beneficiaries of food aid (report of the Secretary–General, para. 25). It has further led to increasing difficulties for the population concerned regarding access to health services, educational establishments and primary sources of water. This is also attested by a number of different information sources. Thus the report of the Secretary–General states generally that "According to the Palestinian Central Bureau of Statistics, so far the Barrier has separated 30 localities from health services, 22 from schools, 8 from primary water sources and 3 from electricity networks." (Report of the Secretary–General, para. 23.) The Special Rapporteur of the United Nations Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967 states that "Palestinians between the Wall and Green Line will effectively be cut off from their land and workplaces, schools, health clinics and other social services." (E/CN.4/2004/6, 8 September 2003, para. 9.) In relation specifically to water resources, the Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights observes that "By constructing the fence Israel will also effectively annex most of the western aquifer system (which provides 51 per cent of the West Bank’s water resources)." (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) Similarly, in regard to access to health services, it has been stated that, as a result of the enclosure of Qalqiliya, a United Nations hospital in that town has recorded a 40 per cent decrease in its caseload (report of the Secretary–General, para. 24). At Qalqiliya, according to reports furnished to the United Nations, some 600 shops or businesses have shut down, and 6,000 to 8,000 people have already left the region (E/CN.4/2004/6,

8 September 2003,

para. 10;

E/CN.4/2004/10/Add.2,

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31 October 2003, para. 51). The Special Rapporteur on the Right to Food of the United Nations Commission on Human Rights has also observed that "With the fence/wall cutting communities off from their land and water without other means of subsistence, many of the Palestinians living in these areas will be forced to leave." (E/CN.4/2004/10/Add.2, 31 October 2003, para. 51.) In this respect also the construction of the wall would effectively deprive a significant number of Palestinians of the "freedom to choose [their] residence". In addition, however, in the view of the Court, since a significant number of Palestinians have already been compelled by the construction of the wall and its associated régime to depart from certain areas, a process that will continue as more of the wall is built, that construction, coupled with the establishment of the Israeli settlements mentioned in paragraph 120 above, is tending to alter the demographic composition of the Occupied Palestinian Territory.

134. To sum up, the Court is of the opinion that the construction of the wall and its associated régime impede the liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed under Article 12, paragraph 1, of the International Covenant on Civil and Political Rights. They also impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the United Nations Convention on the Rights of the Child. Lastly, the construction of the wall and its associated régime, by contributing to the demographic changes referred to in paragraphs 122 and 133 above, contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions cited in paragraph 120 above.

135. The Court would observe, however, that the applicable international humanitarian law contains provisions enabling account to be taken of military exigencies in certain circumstances. 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

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forcible transfers of population and deportations, which are prohibited under Article 49, paragraph 1, 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". The Court considers that the military exigencies contemplated by these texts may be invoked in occupied territories even after the general close of the military operations that led to their occupation. However, on the material before it, the Court is not convinced that the destructions carried out contrary to the prohibition in Article 53 of the Fourth Geneva Convention were rendered absolutely necessary by military operations.

[pp. 232-234 S.O. Kooijmans] 46. … I have difficulty in accepting the Court’s finding that the

States parties to the Fourth Geneva Convention are under an obligation to ensure compliance by Israel with humanitarian law as embodied in that Convention (para. 159, operative subparagraph (3) (D), last part). In this respect the Court bases itself on common Article 1 of the Geneva Convention which reads: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." (Emphasis added.)

47. The Court does not say on what ground it concludes that this Article imposes obligations on third States not party to a conflict. The travaux préparatoires do not support that conclusion. According to Professor Kalshoven, who investigated thoroughly the genesis and further development of common Article 1, it was mainly intended to ensure respect of the conventions by the population as a whole and as such was closely linked to common Article 3 dealing with internal conflicts (F. Kalshoven, "The Undertaking to Respect and Ensure Respect in all Circumstances: From Tiny Seed to Ripening Fruit" in Yearbook of International Humanitarian Law, Vol. 2 (1999), p. 3-61). His conclusion from the travaux préparatoires is:

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"I have not found in the records of the Diplomatic Conference even the slightest awareness on the part of government delegates that one might ever wish to read into the phrase ‘to ensure respect’ any undertaking by a contracting State other than an obligation to ensure respect for the Conventions by its people ‘in all circumstances’." (Ibid., p. 28.)

48. Now it is true that already from an early moment the ICRC in its (non-authoritative) commentaries on the 1949 Convention has taken the position that common Article 1 contains an obligation for all States parties to ensure respect by other States parties. It is equally true that the Diplomatic Conference which adopted the 1977 Additional Protocols incorporated common Article 1 in the First Protocol. But at no moment did the Conference deal with its presumed implications for third States.

49. Hardly less helpful is the Court’s reference to common Article 1 in the Nicaragua case. The Court, without interpreting its terms, observed that "such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression". The Court continued that "The United States [was] thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua" to act in violation of common Article 3 (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 114, para. 220). But this duty of abstention is completely different from a positive duty to ensure compliance with the law.

50. Although I certainly am not in favour of a restricted interpretation of common Article 1, such as may have been envisaged in 1949, I simply do not know whether the scope given by the Court to this Article in the present Opinion is correct as a statement of positive law. Since the Court does not give any argument in its reasoning, I do not feel able to support its finding. Moreover, I fail to see what kind of positive action, resulting from this obligation, may be expected from individual States, apart from diplomatic demarches.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda)

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[pp. 229-231] 172. The Court observes that, under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be 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 (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 167, paras. 78 and p. 172, para. 89).

173. In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an "occupying Power" in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government. In that event, any justification given by Uganda for its occupation would be of no relevance; nor would it be relevant whether or not Uganda had established a structured military administration of the territory occupied.

174. The Court will now ascertain whether parts of the territory of the DRC were placed under the authority of the Ugandan army in the sense of Article 42 of the Hague Regulations of 1907. In this regard, the Court first observes that the territorial limits of any zone of occupation by Uganda in the DRC cannot be determined by simply drawing a line connecting the geographical locations where Ugandan troops were present, as has been done on the sketch-map presented by the DRC (see paragraphs 55 and 73 above).

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175. It is not disputed between the Parties that General Kazini, commander of the Ugandan forces in the DRC, created the new "province of Kibali-Ituri" in June 1999 and appointed Ms Adèle Lotsove as its Governor. Various sources of evidence attest to this fact, in particular a letter from General Kazini dated 18 June 1999, in which he appoints Ms Adèle Lotsove as "provisional Governor" and gives suggestions with regard to questions of administration of the new province. This is also supported by material from the Porter Commission. The Court further notes that the Sixth report of the Secretary-General on MONUC (S/2001/128 of 12 February 2001) states that, according to MONUC military observers, the UPDF was in effective control in Bunia (capital of Ituri district).

176. The Court considers that regardless of whether or not General Kazini, commander of the Ugandan forces in the DRC, acted in violation of orders and was punished as a result, his conduct is clear evidence of the fact that Uganda established and exercised authority in Ituri as an occupying Power.

177. The Court observes that the DRC makes reference to "indirect administration" through various Congolese rebel factions and to the supervision by Ugandan officers over local elections in the territories under UPDF control. However, the DRC does not provide any specific evidence to show that authority was exercised by Ugandan armed forces in any areas other than in Ituri district. The Court further notes that, although Uganda recognized that as of 1 September 1998 it exercised "administrative control" at Kisangani Airport, there is no evidence in the case file which could allow the Court to characterize the presence of Ugandan troops stationed at Kisangani Airport as occupation in the sense of Article 42 of the Hague Regulations of 1907. Neither can the Court uphold the DRC’s contention that Uganda was an occupying Power in areas outside Ituri controlled and administered by Congolese rebel movements. As the Court has already indicated, the evidence does not support the view that these groups were "under the control" of Uganda (see paragraph 160 above).

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178. The Court thus concludes that Uganda was the occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.

179. 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 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.

180. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation.

[pp. 242-245] 215. The Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations. In this regard, the Court needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose.

216. The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of

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a Wall in the Occupied Palestinian Territory. In this Advisory Opinion the Court found 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." (I.C.J. Reports 2004, p. 178, para. 106.) It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. 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).

217. The Court considers that the following instruments in the fields of international humanitarian law and international human rights law are applicable, as relevant, in the present case: − Regulations Respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907. Neither the DRC nor Uganda are parties to the Convention. However, the Court reiterates that "the provisions of the Hague Regulations have become part of customary law" (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 172, para. 89) and as such are binding on both Parties; − Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949. The DRC’s (at the time Republic of the Congo (Léopoldville)) notification of succession dated 20 February 1961 was deposited on 24 February 1961, with retroactive effect as from 30 June 1960,

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the date on which the DRC became independent; Uganda acceded on 18 May 1964; − International Covenant on Civil and Political Rights of 19 December 1966. The DRC (at the time Republic of Zaire) acceded to the Covenant on 1 November 1976; Uganda acceded on 21 June 1995; − Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. The DRC (at the time Republic of Zaire) acceded to the Protocol on 3 June 1982; Uganda acceded on 13 March 1991; − African Charter on Human and Peoples’ Rights of 27 June 1981. The DRC (at the time Republic of Zaire) acceded to the Charter on 20 July 1987; Uganda acceded on 10 May 1986; − Convention on the Rights of the Child of 20 November 1989. The DRC (at the time Republic of Zaire) ratified the Convention on 27 September 1990 and Uganda on 17 August 1990; − Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 25 May 2000. The Protocol entered into force on 12 February 2002. The DRC ratified the Protocol on 11 November 2001; Uganda acceded on 6 May 2002.

218. The Court moreover emphasizes that, under common Article 2 of the four Geneva Conventions of 12 August 1949, "[i]n addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

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219. In view of the foregoing, the Court finds that the acts committed by the UPDF and officers and soldiers of the UPDF (see paragraphs 206-211 above) are in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying Power. These obligations are binding on the Parties as customary international law. Uganda also violated the following provisions of the international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties: − Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with regard to obligations of an occupying Power; − International Covenant on Civil and Political Rights, Articles 6, paragraph 1, and 7; − First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2; − African Charter on Human and Peoples’ Rights, Articles 4 and 5; − Convention on the Rights of the Child, Article 38, paragraphs 2 and 3; − Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3, paragraph 3, 4, 5 and 6.

220. The Court thus concludes that Uganda is internationally responsible for violations of international human rights law and international humanitarian law committed by the UPDF and by its members in the territory of the DRC and for failing to comply with its obligations as an occupying Power in Ituri in respect of violations of international human rights law and international humanitarian law in the occupied territory.

[pp. 252-253] 245. As the Court has already stated (see paragraph 180 above), the acts and omissions of members of Uganda’s military forces in the DRC engage Uganda’s international responsibility in all circumstances, whether it was an occupying Power in particular regions or not. Thus, whenever members of the UPDF were involved in the looting, plundering and exploitation of natural resources in the territory of the DRC, they acted in violation of the jus in bello, which prohibits the commission of such acts

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by a foreign army in the territory where it is present. The Court notes in this regard that both Article 47 of the Hague Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949 prohibit pillage. The Court further observes that both the DRC and Uganda are parties to the African Charter on Human and Peoples’ Rights of 27 June 1981, which in paragraph 2 of Article 21, states that "[i]n case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation".

246. The Court finds that there is sufficient evidence to support the DRC’s claim that Uganda violated its duty of vigilance by not taking adequate measures to ensure that its military forces did not engage in the looting, plundering and exploitation of the DRC’s natural resources. As already noted, it is apparent that, despite instructions from the Ugandan President to ensure that such misconduct by UPDF troops cease, and despite assurances from General Kazini that he would take matters in hand, no action was taken by General Kazini and no verification was made by the Ugandan Government that orders were being followed up (see paragraphs 238-239 above). In particular the Court observes that the Porter Commission stated in its Report that "[t]he picture that emerges is that of a deliberate and persistent indiscipline by commanders in the field, tolerated, even encouraged and covered by General Kazini, as shown by the incompetence or total lack of inquiry and failure to deal effectively with breaches of discipline at senior levels". (Also of relevance in the Porter Commission Report are paragraphs 13.1 "UPDF Officers conducting business", 13.5 "Smuggling" and 14.5 "Allegations against General Kazini"). It follows that by this failure to act Uganda violated its international obligations, thereby incurring its international responsibility. In any event, whatever measures had been taken by its authorities, Uganda’s responsibility was nonetheless engaged by the fact that the unlawful acts had been committed by members of its armed forces (see paragraph 214 above).

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247. As for the claim that Uganda also failed to prevent the looting, plundering and illegal exploitation of the DRC’s natural resources by rebel groups, the Court has already found that the latter were not under the control of Uganda (see paragraph 160 above). Thus, with regard to the illegal activities of such groups outside of Ituri, it cannot conclude that Uganda was in breach of its duty of vigilance.

248. 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. It is apparent from various findings of the Porter Commission that rather than preventing the illegal traffic in natural resources, including diamonds, high-ranking members of the UPDF facilitated such activities by commercial entities. In this regard, the Report of the Commission mentions a company referred to as "Victoria" (see paragraph 240 above), which operated, inter alia, in Bunia. In particular the Report indicates that "General Kazini gave specific instructions to UPDF Commanders in Isiro, Bunia, Beni, Bumba, Bondo and Buta to allow the Company to do business uninterrupted in the areas under their command". (Also of relevance in the Report of the Commission are paragraphs 18.5.1 "Victoria Group", 20.3 "General James Kazini" and 21.3 "The Diamond Link".)

249. Thus the Court finds that it has been proven that Uganda has not complied with its obligations as an occupying Power in Ituri district. The Court would add that Uganda’s argument that any exploitation of natural resources in the DRC was carried out for the benefit of the local population, as permitted under humanitarian law, is not supported by any reliable evidence.

250. The Court concludes that it is in possession of sufficient credible evidence to find that Uganda is internationally responsible for acts of looting, plundering and exploitation of the DRC’s natural resources committed by members of the UPDF in the

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territory of the DRC, for violating its obligation of vigilance in regard to these acts and for failing to comply with its obligations under Article 43 of the Hague Regulations of 1907 as an occupying Power in Ituri in respect of all acts of looting, plundering and exploitation of natural resources in the occupied territory.

[pp. 299-300 S.O. Parra-Aranguren] 31. In this respect paragraph 175 of the Judgment states: "It is not disputed between the Parties that General Kazini, commander of the Ugandan forces in the DRC, created the new ‘province of Kibali-Ituri’ in June 1999 and appointed Ms Adèle Lotsove as its Governor. Various sources of evidence attest to this fact, in particular a letter from General Kazini dated 18 June 1999, in which he appoints Ms Adèle Lotsove as ‘provisional Governor’ and gives suggestions with regard to questions of administration of the new province. This is also supported by material from the Porter Commission. The Court further notes that the Sixth report of the Secretary-General on MONUC (S/2001/128 of 12 February 2001) states that, according to MONUC military observers, the UPDF was in effective control in Bunia (capital of Ituri district)."

32. These facts are not disputed by Uganda and the majority of the Court concludes from them that the conduct of General Kazini "is clear evidence of the fact that Uganda established and exercised authority in Ituri as an occupying Power" (Judgment, paragraph 176).

33. In my opinion, this conclusion is not acceptable. It is true that General Kazini, Commander of the Ugandan forces in the DRC, appointed Ms Adèle Lotsove as "provisional Governor" in charge of the newly created province of Kibali-Ituri in June 1999, giving her suggestions with regard to questions of the administration of the province. However, this fact does not prove that either General Kazini or the appointed Governor were in a position to exercise, and in fact did exercise, actual authority in the whole province of Kibali-Ituri. It is also true that the UPDF was in control in Bunia (capital of Kibali-Ituri district), but control over Bunia does not imply effective control over the whole province of Kibali-Ituri, just as control over the capital (Kinsasha) by the Government of the DRC does not inevitably mean that it actually controls the whole territory of the country.

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34. Therefore, in my opinion, the elements advanced in the Judgment do not prove that Uganda established and exercised actual authority in the whole province of Kibali-Ituri, as required in Article 42 of the Hague Regulations of 1907.

[pp. 304-305 S.O. Parra-Aranguren] 44. … the majority of the Court concluded that Uganda was an occupying Power of Kibali-Ituri province and that for this reason it "was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party." (Judgment, paragraph 178.)

45. Article 43 of the Hague Regulations of 1907 states: "When the legally constituted authority has actually passed into the hands of the occupant, the latter shall take all measures within his power to restore and, as far as possible, to insure public order and life, respecting the laws in force in the country unless absolutely prevented."

46. Consequently, application of Article 43 is conditional on the fact that "legally constituted authority actually passed into the hands of the occupant". It is not clear to me how the majority of the Court came to the conclusion that this requirement was met, because no explanation in this respect is given in the Judgment.

47. Moreover, the obligation imposed upon the occupying Power by Article 43 is not an obligation of result. An occupying Power is not in violation of Article 43 for failing to effectively restore public order and life in the occupied territory, since it is only under the obligation to "take all measures within his power to restore and as far as possible, to insure public order and life". It is an open question whether the nature of this obligation has been duly taken into account in the Judgment.

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[pp. 316-319 S.O. Judge Kooijmans] 40. … In a period when war or the use of force as such was not legally objectionable, the notion of occupation as a term of art was not held in disrepute either. And thus the establishment of an administrative system by the occupant was seen as quite normal.

41. Partly as a result of the outlawing of war, that practice has become the exception rather than the rule. Occupants feel more and more inclined to make use of arrangements where authority is said to be exercised by transitional governments or rebel movements or where the occupant simply refrains from establishing an administrative system. "In these cases, the occupants would tend not to acknowledge the applicability of the law of occupation to their own or their surrogate’s activities, and when using surrogate institutions, would deny any international responsibility for the latter’s actions."75

42. In the present case, the Court was confronted with both these factual and non-factual issues. Uganda denied its responsibility under the law of occupation firstly on the ground that its troops were too thinly spread to be able to exercise authority. It argued secondly that actual authority was vested in the Congolese rebel movements, which carried out virtually all administrative functions.

43. The Court has deemed it its task "to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government" (Judgment, paragraph 173; emphasis added).

44. It is in particular this element of "substitution of the occupant’s authority for that of the territorial power" which leads in my opinion to an unwarranted narrowing of the criteria of the law of belligerent occupation as these have been interpreted in customary law since 1907.

45. Article 41 of the "Oxford Manual" adopted in 1880 by the Institut de droit international already stated: "Territory is regarded as occupied when, as the consequence of invasions by hostile forces, the State to which it belongs has ceased, in fact, to exercise its authority 75

Eyal Benvenisti, The International Law of Occupation, 1993, p. 5.

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therein, and the invading State is alone in a position to maintain order there. The limits within which this state of affairs exists determine the extent and duration of the occupation." (Emphasis added.) It is noteworthy that these criteria have remained virtually unaltered. In modern national manuals on the law of armed conflict these criteria are expressed in similar terms; they are, firstly, that "military occupation presupposes a hostile invasion, resisted or un-resisted, as a result of which the invader has rendered the invaded government incapable of exercising its authority, and [secondly] that the invader is in a position to substitute its own authority for that of the former government"76.

46. In the present case the first criterion is certainly met; even if the actual authority of the DRC government in the north-eastern part of the country was already decidedly weak before the invasion by the UPDF, that government indisputably was rendered incapable of exercising the authority it still had as a result of that invasion. By occupying the nerve centres of governmental authority − which in the specific geographical circumstances were the airports and military bases − the UPDF effectively barred the DRC from exercising its authority over the territories concerned.

47. The Court, without explicitly mentioning this criterion, nevertheless seems to assume that it has been met. It concentrates, however, on the second criterion, the actual exercise of authority by the Ugandan armed forces and concludes that it has not been provided with "any specific evidence that authority was exercised by [them] in any other areas than in Ituri district". It seems to adopt the view that in these areas authority was exercised by the rebel movements which cannot be considered to have been controlled by Uganda. (Judgment, paragraph 177.)

48. The Court in my view did not give sufficient consideration to the fact that it was the Ugandan armed invasion which enabled the Congolese rebel movements to bring the northeastern provinces under their control. Had there been no invasion, the central government would have been in a far better position to resist these rebel movements. Uganda’s invasion

76

United States Manual on the Law of Land Warfare (1956), FM 27-10. See also, United Kingdom Manual of the Law of Armed Conflict (2004), p. 275, 11.3.

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was therefore crucial for the situation as it developed after the outbreak of the civil war. As the decisive factor in the elimination of the DRC’s authority in the invaded area, Uganda actually replaced it with its own authority.

49. I am, therefore, of the opinion that it is irrelevant from a legal point of view whether it exercised this authority directly or left much of it to local forces or local authorities. As long as it effectively occupied the locations which the DRC Government would have needed to reestablish its authority, Uganda had effective, and thus factual, authority. Its argument that it cannot be considered to have been an effective occupying Power, in view of the limited number of its troops, cannot therefore be upheld77.

[pp. 320-322 S.O. Kooijmans] 57. The law on belligerent occupation was originally set up as a "balancing mechanism"78 between the interests of the ousted sovereign and the occupying Power. The latter’s obligation as temporary authority to restore and ensure public order while respecting the laws in force (Article 43 Hague Regulations) and its powers with respect to property (Arts. 48 ff) reflect this balancing mechanism. It was only in 1949 that the rules on occupation were extended in the Fourth Geneva Convention by adding a number of provisions regarding the treatment of the population of occupied territory.

58. In their interrelationship the rules on occupation form an important part of the ius in bello or international humanitarian law. The main purpose of that law is to protect persons caught up in conflict, even if it does take into account the interests of the belligerent parties. It does not differentiate between belligerents. In particular, no distinction is made in the ius in bello between an occupation resulting from a lawful use of force and one which is the result of 77

See also Oppenheim-Lauterpacht, International Law, 7th ed., 1962, p. 435: “When the legitimate sovereign is prevented from exercising his powers, and the occupant, being able to assert his authority, actually establishes an administration over a territory, it matters not with what means, and in what ways, his authority is exercised.” (Emphasis added.). See also H.P. Gasser, in D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflict, 1995, p. 243:

“Even if the stated strategic goal of an invasion of foreign territory is not to gain control of the area or its inhabitants, but ‘merely’ to secure against attacks on the invader’s own territory close to the border, the invading power still bears responsibility for the parts of the territory actually controlled. Similarly, neither the claimed short duration of the occupation nor the absence of military administration for the occupied territory makes any difference”. (Emphasis added.). 78 Benvenisti, op. cit. note 75, p. 30.

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aggression. The latter issue is decided by application of the ius ad bellum, the law on the use of force, which attributes responsibility for the commission of the acts of which the occupation is the result.

59. In the present case, the Court has found that Uganda has violated its obligation under the principle of the non-use of force, since its military activities do not constitute self-defence. It thus has breached its obligations under the ius ad bellum. The Court has also found that Uganda has violated its obligations under the ius in bello, in particular in regard to the district of Ituri, the occupation of which was the outcome of its illegal use of force.

60. It goes without saying that the outcome of an unlawful act is tainted with illegality. The occupation resulting from an illegal use of force betrays its origin but the rules governing its régime do not characterize the origin of the result as lawful or unlawful.

61. In his report for the Centennial of the First Hague Peace Conference Professor Christopher Greenwood has dealt with the implications of the fact that nowadays the ius in bello exists "within a framework of international law which significantly restricts the right of States to resort to force". He continues by saying that the full implications of the relationship between the contemporary ius ad bellum and ius in bello have yet to be determined79.

62. Earlier I drew attention to the fact that the reluctance of governments to declare the law of belligerent occupation applicable may be due to the impression that "occupation" has become almost synonymous with aggression and oppression.

63. I am aware that this impression is lent credibility by Article 3 of General Assembly resolution 3314 (XXIX) on the Definition of Aggression, which under (a) qualifies as an act of aggression: "The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack ..." (Emphasis added.)

79

F. Kalshoven (ed.), The Centennial of the First International Peace Conference, Reports and Conclusions, 2000, p. 186.

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This resolution, as important as it may be from a legal point of view, does not in all its terms reflect customary law. The reference to military occupation as an act of aggression is in my opinion less than felicitous80.

64. Professor Greenwood says that "[t]he law of belligerent occupation has had a poor record of compliance for most of the 20th century". In his view the principal problem is not one of a deficiency in the law but rather the reluctance of States to admit that the law applies at all81. I regret that in the first paragraph of the dispositif the Court may have contributed to this reluctance on the part of belligerent parties to declare the law of occupation applicable.

[pp. 340-344 S.O. Simma] 19. Be this as it may, I will take the opportunity of Uganda’s claim concerning the events at the airport further to develop the thesis presented at the outset, namely that it would have been possible for the Court in its Judgment to embrace the situation in which these individuals found themselves, on the basis of international humanitarian and human rights law, and that no legal void existed in their regard. The reader might ask herself why I should give so much attention to an incident which happened more than seven years ago, whose gravity must certainly pale beside the unspeakable atrocities committed in the war in the Congo. I will be very clear: I consider that legal arguments clarifying that in situations like the one before us no gaps exist in the law that would deprive the affected persons of any legal protection, have, unfortunately, never been as important as at present, in the face of certain recent deplorable developments.

20. Let me, first, turn to the relevance of international humanitarian law to the incident at Ndjili International Airport. To begin with, the fact that the airport was not a site of major hostilities in the armed conflict between the DRC and Uganda does not present a barrier to the application of international humanitarian law to the events which happened there. There are two reasons for this.

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See B. Broms, “The Definition of Aggression”; Recueil des Cours, 154 (1977), p. 348: “[I]t could be argued in view of the way in which the paragraph has been construed that the military occupation or the annexation presupposes the existence of an act of aggression in the form of an invasion or attack and that it would therefore not have been necessary to include them separately in this paragraph”.

81

Op. cit., pp. 218-219.

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21. First, the key issue in finding whether international humanitarian law should apply also in peaceful areas of the territory of a belligerent State is whether those areas are somehow connected to the conflict. This was indeed the case with Ndjili International Airport because the individuals maltreated there found themselves in a situation of evacuation from armed conflict. The Note of Protest sent by the Embassy of Uganda to the Ministry of Foreign Affairs of the DRC on 21 August 1998 − which the Court considers reliable evidence in paragraph 339 of its Judgment − states that individuals and Ugandan diplomats were at Ndjili International Airport in the context of an evacuation (CMU, Ann. 23). This evacuation was necessary due to the armed conflict taking place in the DRC. Therefore, the events at the airport were factually connected to the armed conflict. The airport was not a random peaceful location completely unconnected to that conflict. Quite the contrary, it was the point of departure for an evacuation rendered necessary precisely by the armed conflict. During that evacuation, the airport became the scene of violence by Congolese forces against the evacuees.

22. Article 80 (1) of the Rules of Court states that: "A counter-claim may be presented provided that it is directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Court." (Emphasis added.) In its Order of 29 November 2001, the Court found the second counter-claim admissible under the Article 80 "direct connection" test, stating that "each Party holds the other responsible for various acts of oppression allegedly accompanying an illegal use of force; ... these are facts of the same nature, and ... the Parties’ claims form part of the same factual complex" (para. 40; emphasis added). Therefore the Court had already determined, in its Order under Article 80, that the events at the airport formed part of the "same factual complex" as the armed conflict which constitutes the basis of the main claim. Hence, international humanitarian law should apply to the counter-claim as it does to the main claim.

23. Second, the application of international humanitarian law to the events at the airport would be consistent with the understanding of the scope of international humanitarian law developed by the ICTY Appeals Chamber. In Prosecutor v. Tadic, the Appeals Chamber stated: "Armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between ... such groups within a State. International

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Law of Armed Conflicts / International Humanitarian Law humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there." (No. IT-94-1, Decision of the Appeals Chamber on the defence motion for interlocutory appeal on jurisdiction, para. 70 (2 October 1995); emphasis added.)

The Appeals Chamber also noted that "the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities" (ibid., at para. 67). Later in the same case, a Trial Chamber analysed the phrase "when committed in armed conflict", which qualifies the unlawful acts set out in Article 5 of the Statute of the ICTY, and concluded that "it is not necessary that the acts occur in the heat of battle" (Prosecutor v. Dusko Tadic, No. IT-94-1-T, Trial Chamber, Opinion and Judgment, para. 632 (7 May 1997)). Similarly, a Trial Chamber of the ICTY has stated that "there does not have to be actual combat activities in a particular location for the norms of international humanitarian law to be applicable" (Prosecutor v. Delalic, Mucic, Delic, & Landzo, No. IT96-21-T, Trial Chamber Judgment, para. 185 (16 November 1998)).

24. I turn, next, to the substantive rules of international humanitarian law applicable to the persons in question. The provision which first comes to mind is Article 4 of the Fourth Geneva Convention of 1949. According to Article 4, persons who "at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals" are considered "protected persons" under the Convention. If the individuals maltreated by the DRC at Ndjili International Airport were considered protected persons under Article 4 of the Fourth Geneva Convention, the behaviour of the Congolese soldiers would have violated several provisions of that Convention, including Article 27 (requiring that protected persons "shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity"), Article 32 (prohibiting the infliction of physical suffering on protected persons), Article 33 (prohibiting reprisals against protected persons and their property), and Article 36 (requiring that evacuations of protected persons be carried out safely).

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25. However, the qualification of the 17 individuals at the airport as "protected persons" within the meaning of Article 4 meets with great difficulties. As I stated above, Uganda was not able to prove that these persons were her own nationals; in fact we have no information whatsoever as to their nationality. In this regard, Article 4 of the Fourth Geneva Convention states that: "Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are." The individuals under consideration might have been nationals of a neutral State or those of a co-belligerent (like Rwanda), and we do not know whether their home State maintained normal diplomatic relations with the DRC at the time of the incident. Against this factual background − or rather, the lack thereof − it would not have been possible for the Court to regard them as "protected persons".

26. But this is not the end of the matter. The gap thus left by Geneva Convention Article 4 has in the meantime been − deliberately − closed by Article 75 of Protocol I Additional to the Geneva Conventions of 1949. This provision enshrines the fundamental guarantees of international humanitarian law and reads in pertinent part as follows: "1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article ...

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: … (iii) corporal punishment; …

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The Commentary of the International Committee of the Red Cross to Article 75 specifically notes that this provision was meant to provide protection to individuals who, by virtue of the exceptions listed in Article 4 of the Fourth Geneva Convention, did not qualify as "protected persons". Thus, the Commentary makes clear that Article 75 provides protection to both nationals of States not parties to the conflict and nationals of allied States, even if their home State happened to have normal diplomatic representation in the State in whose hands they find themselves82. The Commentary emphasizes that "[i]f ... there were ... cases in which the status of ... protected person were denied to certain individuals, the protection of Article 75 must be applied to them as a minimum"83.

27. The conclusion just arrived at has been confirmed recently in an Opinion of the European Commission for Democracy through Law (Venice Commission) established by the Council of Europe84. This Opinion was prepared to answer the question whether the new challenges posed by international terrorism, and the claims made by the United States in the wake of September 11 to the effect that the United States could deny certain persons the protection of the Geneva Conventions because they were "enemy unlawful combatants", rendered necessary a further development of international humanitarian law. According to the Venice Commission, Article 75 of Protocol I Additional to the Geneva Conventions, as well as common Article 3 to the Geneva Conventions (on which infra) "are based on the assumption that nationals of States which are not Parties to the conflict or nationals of co-belligerent States do not need the full protection of GC IV since they are normally even better protected by the rules on diplomatic protection. Should however, diplomatic protection not be (properly) exercised on behalf of such third party nationals, International Humanitarian Law provides for protection under Article 75 P I and common Article 3 so that such persons do not remain without certain minimum rights."85

82

Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Y. Sandoz, Ch. Swinarski, B. Zimmermann (eds.), Geneva, 1987, p. 869.

83

Ibid., p. 867.

84

Adopted by the Venice Commission at its 57th Plenary Session, Venice, 12-13 December 2003, Opinion No. 245/2003, doc. No. CDL-AD (2003) 18, paras. 34 ff.

85

Ibid., para. 38.

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Thus, also according to the Venice Commission, there is "in respect of these matters ... no legal void in international law"86.

28. Further, it can safely be concluded that the fundamental guarantees enshrined in Article 75 of Additional Protocol I are also embodied in customary international law87.

29. Attention must also be drawn to Article 3 common to all four Geneva Conventions, which defines certain rules to be applied in armed conflicts of a non-international character. As the Court stated in the Nicaragua case: "There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’ (Corfu Channel, Merits, I.C.J. Reports 1949, p. 22 ...)." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 114, para. 218.) As such, the Court in Nicaragua found these rules applicable to the international dispute before it. The same is valid in the present case. In this regard, the decision of the Tadic Appeals Chamber discussed above is also of note. In relation to common Article 3, it stated that "the rules contained in Article 3 also apply outside the narrow geographical context of the actual theatre of combat operations" (Prosecutor v. Tadic, Decision of the Appeals Chamber on the defence motion for interlocutory appeal on jurisdiction, para. 69; see supra, para. 23).

[pp. 344-346 S.O. Simma] 30. In addition to constituting breaches of international humanitarian law, the maltreatment of the persons in question at Ndjili International Airport was also in violation of international human rights law. In paragraph 216 of its Judgment, the Court recalls its finding in the Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, according to which "the

86

Ibid., para. 85.

87

For a highly relevant reference in this regard (cf. supra, para. 19) United States Army, Operational Law Handbook (2002), International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, issued 15 June 2001, Ch. 2 at p. 5. See also, more generally, A. Roberts, “The Laws of War in the War on Terror”, Israel Yearbook of Human Rights, Vol. 32 (2002), pp. 192-245.

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protection offered by human rights conventions does not cease in case of armed conflict ..." (I.C.J. Reports 2004, p. 178, para. 106). In its Advisory Opinion, the Court continued: "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." (Ibid.) In my view, the maltreatment of the individuals at the airport falls under the third category of the situations mentioned: it is a matter of both international humanitarian and international human rights law.

31. Applying international human rights law to the individuals maltreated by the DRC at Ndjili International Airport, the conduct of the DRC would violate provisions of the International Covenant on Civil and Political Rights of 19 December 1966, the African Charter on Human and Peoples’ Rights of 27 June 1981, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, to all of which both the DRC and Uganda are parties. Specifically, under the International Covenant on Civil and Political Rights, the conduct of the DRC would violate Article 7 ("No one shall be subjected to ... cruel, inhuman or degrading treatment or punishment."), Article 9, paragraph 1 ("Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law"), Article 10, paragraph 1 ("All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."), and Article 12, paragraphs 1 and 2 ("1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement ... 2. Everyone shall be free to leave any country, including his own."). Under the African Charter, the conduct of the DRC would violate Article 4 ("Human beings are inviolable. Every human being shall be entitled to respect for ... the integrity of his person. No one may be arbitrarily deprived of this right."), Article 5 ("Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly ... cruel, inhuman or degrading punishment and treatment shall be prohibited."), Article 6 ("Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one

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may be arbitrarily arrested or detained."), as well as Article 12, paragraphs 1 and 2 ("1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country ..."). Finally, although the conduct of the DRC at Ndjili International Airport did not rise to the level of torture, it was nevertheless in violation of Article 16, paragraph 1, of the Convention Against Torture which reads as follows: "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

[pp. 346-347 S.O. Simma] 32. The jurisdiction of the Court being firmly established, there remains the issue of standing to raise violations of international humanitarian and human rights law in the case of persons who may not have the nationality of the claimant State. In the present case, regarding Uganda’s counter-claim, the issue does not present itself in a technical sense because Uganda has not actually pleaded a violation of either of these branches of international law in relation to the persons in question. But if Uganda had chosen to raise these violations before the Court, it would undoubtedly have had standing to bring such claims.

33. As to international humanitarian law, Uganda would have had standing because, as the Court emphasized in its Advisory Opinion on the Wall: "Article 1 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 under an obligation to ensure that the requirements of the instruments in question are complied with." (I.C.J. Reports 2004, pp. 199-200, para. 158.) The Court concluded that given the character and the importance of the rights and obligations involved, there is an obligation on all States parties to the Convention to respect and ensure

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respect for violations of the international humanitarian law codified in the Convention (ibid., p. 200, paras. 158-159). The same reasoning is applicable in the instant case. There cannot be any doubt that the obligation (not only to respect but also) to ensure respect for international humanitarian law applies to the obligations enshrined both in common Article 3 and in Protocol I Additional to the Geneva Conventions.

34. The ICRC Commentary to common Article 1 of the Conventions arrives at the same result in its analysis of the obligation to respect and to ensure respect, where it is stated that: "in the event of a Power failing to fulfil its obligations [under the Convention], the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally."88 Thus, regardless of whether the maltreated individuals were Ugandans or not, Uganda had the right − indeed the duty − to raise the violations of international humanitarian law committed against the private persons at the airport. The implementation of a State party’s international legal duty to ensure respect by another State party for the obligations arising under humanitarian treaties by way of raising it before the International Court of Justice is certainly one of the most constructive avenues in this regard.

[pp. 349-350 S.O. Simma] 38. Let me conclude with a more general observation on the community interest underlying international humanitarian and human rights law. I feel compelled to do so because of the notable hesitation and weakness with which such community interest is currently manifesting itself vis-à-vis the ongoing attempts to dismantle important elements of these branches of international law in the proclaimed "war" on international terrorism.

39. As against such undue restraint it is to be remembered that at least the core of the obligations deriving from the rules of international humanitarian and human rights law are

88

Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, J.S. Pictet (ed.), Geneva, 1958, p. 16.

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valid erga omnes. According to the Commentary of the ICRC to Article 4 of the Fourth Geneva Convention, "[t]he spirit which inspires the Geneva Conventions naturally makes it desirable that they should be applicable ‘erga omnes’, since they may be regarded as the codification of accepted principles"89. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons the Court stated that "a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary 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 1996 (I), p. 257, para. 79). Similarly, in the Wall Advisory Opinion, the Court affirmed that the rules of international humanitarian law "incorporate obligations which are essentially of an erga omnes character" (I.C.J. Reports 2004, p. 199, para. 157).

40. As the Court indicated in the Barcelona Traction case, obligations erga omnes are by their very nature "the concern of all States" and, "[i]n 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, p. 32, para. 33). In the same vein, the International Law Commission has stated in the Commentaries to its Articles on the Responsibility of States for Internationally Wrongful Acts, that there are certain rights in the protection of which, by reason of their importance, "all States have a legal interest ..." (A/56/10 at p. 278)90.

89

Op. cit. (footnote 88), p. 48.

90

Concerning the specific question of standing in case of breaches of obligations erga omnes the Institute of International Law, in a resolution on the topic of obligations of this nature adopted at its Krakow Session of 2005, accepted the following provisions: "Article 3 In the event of there being a jurisdictional link between a State alleged to have committed a breach of an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to bring a claim to the International Court of Justice or other international judicial institution in relation to a dispute concerning compliance with that obligation. Article 4 The International Court of Justice or other international judicial institution should give a State to which an obligation erga omnes is owed the possibility to participate in proceedings pending before the Court or that institution and relating to that obligation. Specific rules should govern this participation."

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41. If the international community allowed such interest to erode in the face not only of violations of obligations erga omnes but of outright attempts to do away with these fundamental duties, and in their place to open black holes in the law in which human beings may be disappeared and deprived of any legal protection whatsoever for indefinite periods of time, then international law, for me, would become much less worthwhile.

[p. 353 Decl. Tomka] 7. The Court has found that Uganda has breached its obligations under international humanitarian law (paragraph 3 of the dispositif). When considering the allegation of breaches of international humanitarian law obligations by the Uganda Peoples’ Defence Forces (UPDF), the Court, being convinced that they were committed, qualifies these breaches as grave (see paragraphs 207 and 208).

8. The Court has also determined the legal consequences of Uganda’s breaches of its international legal obligations, including the obligations under international humanitarian law (see the dispositif, paragraph 6, and also paragraphs 251-261). In doing that, the Court took as a point of departure the fourth final submission of the DRC (see paragraphs 25 and 252) and determined these consequences under the general rules of international law on responsibility of States for internationally wrongful acts.

9. Nevertheless, since grave breaches of international humanitarian law were committed, there is another legal consequence which has not been raised by the DRC and on which the Court remains silent. That consequence is provided for in international humanitarian law. There should be no doubt that Uganda, as party to both the Geneva Conventions of 1949 and the Additional Protocol I of 1977 remains under the obligation to bring those persons who have committed these grave breaches before its own courts (Article 146 of the Fourth Geneva Convention, and Article 85 of the Protocol I Additional to the Geneva Conventions).

[p. 381 D.O. Kateka] 69. I have voted against operative paragraph 11 of the dispositif, which upholds the objection of the DRC to the admissibility of the part of the second counter-claim relating to the maltreatment of persons other than Ugandan diplomats at Ndjili Airport on 20 August 1998. The invocation by Uganda of the international minimum standard relating to the treatment of foreign nationals is considered by the Court as an exercise of diplomatic protection. Thus according to the Court, Uganda would need to meet the conditions necessary

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for the exercise of diplomatic protection, namely, the requirement of Ugandan nationality of the claimants and the prior exhaustion of local remedies. The Court avoids dealing with the issue of these persons on the grounds that it has not been established that they were Ugandan nationals. In my view, the Court should have invoked international humanitarian law to protect the rights of these persons. The Court would seem not to have given enough weight to violations of the rights of these persons at Ndjili Airport by the DRC.

11. DISPUTE SETTLEMENT *

11.1. General Questions

11.2. Judicial and Arbitral Decisions

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[pp. 76-77] 111. Bahrain maintains that the British decision of 1939 must be considered primarily as an arbitral award, which is res judicata. It claims that the Court does not have jurisdiction to review the award of another tribunal, basing its proposition on "a virtual jurisprudence constante, not to review, invalidate or even confirm awards taken by other international tribunals, unless there is specific, express, additional consent to reopen the award". Thus Bahrain refers to the decision of 15 June 1939 by the Permanent Court of International Justice in the case of the Société Commerciale de Belgique (P.C.I.J., Series A/B, No. 78, p. 160); and to those rendered by the present Court on 18 November 1960 in the case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) (I.C.J. Reports 1960, p. 192), as well as on 12 November 1991 in the case concerning the Arbitral Award of 31 July 1989 (Guinea–Bissau v. Senegal), (I.C.J. Reports 1991, p. 53).

112. Qatar denies the relevance of the judgments cited by Bahrain. It contends that

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for the exercise of diplomatic protection, namely, the requirement of Ugandan nationality of the claimants and the prior exhaustion of local remedies. The Court avoids dealing with the issue of these persons on the grounds that it has not been established that they were Ugandan nationals. In my view, the Court should have invoked international humanitarian law to protect the rights of these persons. The Court would seem not to have given enough weight to violations of the rights of these persons at Ndjili Airport by the DRC.

11. DISPUTE SETTLEMENT *

11.1. General Questions

11.2. Judicial and Arbitral Decisions

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[pp. 76-77] 111. Bahrain maintains that the British decision of 1939 must be considered primarily as an arbitral award, which is res judicata. It claims that the Court does not have jurisdiction to review the award of another tribunal, basing its proposition on "a virtual jurisprudence constante, not to review, invalidate or even confirm awards taken by other international tribunals, unless there is specific, express, additional consent to reopen the award". Thus Bahrain refers to the decision of 15 June 1939 by the Permanent Court of International Justice in the case of the Société Commerciale de Belgique (P.C.I.J., Series A/B, No. 78, p. 160); and to those rendered by the present Court on 18 November 1960 in the case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) (I.C.J. Reports 1960, p. 192), as well as on 12 November 1991 in the case concerning the Arbitral Award of 31 July 1989 (Guinea–Bissau v. Senegal), (I.C.J. Reports 1991, p. 53).

112. Qatar denies the relevance of the judgments cited by Bahrain. It contends that

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"[N]one of them are in the slightest degree relevant to the issue which the Court has to determine in the present case, namely, whether the procedures followed by the British Government in 1938 and 1939 amounted to a process of arbitration which could result in an arbitral award binding upon the parties". Qatar also advances in support of its position the 19 October 1981 arbitral award rendered by the Court of Arbitration in the Dubai/Sharjah Border case; in that award, which in Qatar's view was rendered under circumstances comparable to those of the present case, the Court of Arbitration concluded that boundary delimitation decisions taken by the British Government were not arbitral awards but rather administrative decisions of a binding character (International Law Reports, Vol. 91, p. 579; see also pp. 577, 583 and 585).

113. The Court will first consider the question whether the 1939 British decision must be deemed to constitute an arbitral award. 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". This wording was adopted in Article 15 of the Hague Convention for the Pacific Settlement of International Disputes, dated 29 July 1899. It was repeated in Article 37 of the Hague Convention dated 18 October 1907, having the same object. It was adopted by the Permanent Court of International Justice in its Advisory Opinion of 21 November 1925, interpreting Article 3, paragraph 2, of the Treaty of Lausanne (P.C.I.J., Series B, No. 12, p. 26). It was reaffirmed in the work of the International Law Commission, which reserved the case where the parties might have decided that the requested decision should be taken ex æquo et bono (Report by Mr. Georges Scelle, Special Rapporteur of the Commission, Document A/CN.4/113, of 6 March 1958, Yearbook of the International Law Commission, 1958, Vol. II, p. 2). Finally, more recently, it was adopted by the Court of Arbitration called upon to settle the border dispute between Dubai and Sharjah in a dispute bearing some similarities to the present case (Dubai/Sharjah Border Arbitration, arbitral award of 19 October 1981, International Law Reports, Vol. 91, pp. 574 and 575).

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114. The Court observes that in the present case no agreement existed between the Parties to submit their case to an arbitral tribunal made up of judges chosen by them, who would rule either on the basis of the law or ex æquo et bono. The Parties had only agreed that the issue would be decided by "His Majesty's Government", but left it to the latter to determine how that decision would be arrived at, and by which officials. It follows that the decision whereby, in 1939, the British Government held that the Hawar Islands belonged to Bahrain, did not constitute an international arbitral award.

[pp. 83-85] 139. The Court will begin by recalling that the 1939 decision is not an arbitral award (see paragraphs 113–114 above). This does not, however, mean that it was devoid of all legal effect. Quite to the contrary, the pleadings, and in particular the Exchange of Letters referred to above (see paragraphs 118 and 119 above), show that Bahrain and Qatar consented to the British Government settling their dispute over the Hawar Islands. The 1939 decision must therefore be regarded as a decision that was binding from the outset on both States and continued to be binding on those same States after 1971, when they ceased to be British protected States (see paragraph 65 above).

140. The validity of that decision was certainly not subject to the procedural principles governing the validity of arbitral awards. However as the British Political Agent undertook on 20 May 1938, and as was repeated in the letter of the Ruler of Qatar of 27 May 1938 (see paragraphs 119 and 120 above), this decision was to be rendered "in the light of truth and justice".

141. In this connection, the Court observes in the first place that the Ruler of Qatar in that last letter entrusted the question of the Hawar Islands to the British Government for decision, notwithstanding that seven days before the British Political Agent had informed him that "by their formal occupation of the Islands for some time past the Bahrain Government possess a prima facie claim to them" and that it was therefore for the Ruler of Qatar to submit a "formal claim ... supported by a full and complete statement of the evidence" on which he relied (see paragraph 119 above). This

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procedure was followed and the competent British officials found that "[t]he Shaikh of Qatar ha[d] produced no evidence whatsoever" to counter the effectivités claimed by Bahrain, in particular its occupation of the islands since 1937 (see paragraph 128 above). Under these circumstances, while it is true that the competent British officials proceeded on the premise that Bahrain possessed prima facie title to the islands and that the burden of proving the opposite lay on the Ruler of Qatar, Qatar cannot maintain that it was contrary to justice to proceed on the basis of this premise when Qatar had been informed before agreeing to the procedure that this would occur and had consented to the proceedings being conducted on that basis.

142. The proceedings leading to the 1939 British decision summarized above (see paragraphs 118 to 133 above) further show that Qatar and Bahrain both had the opportunity to present their arguments in relation to the Hawar Islands and the evidence supporting them. Qatar presented its claim in its letters of 10 and 27 May 1938. Bahrain's opposing claims were presented on 22 December 1938, with an annex containing the declarations of several witnesses. Qatar commented on this statement of Bahrain in its letter of 30 March 1939, to which testimonial evidence to support its arguments was also annexed. Thus the two Rulers were able to present their arguments and each of them was afforded an amount of time which the Court considers was sufficient for this purpose; Qatar's contention that it was subjected to unequal treatment therefore cannot be upheld.

143. Finally, the Court notes that, while the reasoning supporting the 1939 decision was not communicated to the Rulers of Bahrain and Qatar, this lack of reasons has no influence on the validity of the decision taken, because no obligation to state reasons had been imposed on the British Government when it was entrusted with the settlement of the matter.

144. Moreover, in the present case the reaction of the Ruler of Qatar was to inform the British Political Resident that he was "deeply astonished" by the decision, but he did not claim that it was invalid for lack of reasons. Qatar stated that it had provided

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enough evidence to support its position, and limited itself to requesting the British Government to re–examine its decision. Therefore, Qatar's contention that the 1939 British decision is invalid for lack of reasons cannot be upheld.

145. Finally, the fact that the Sheikh of Qatar had protested on several occasions against the content of the British decision of 1939 after he had been informed of it is not such as to render the decision inopposable to him, contrary to what Qatar maintains.

146. The Court accordingly concludes that the decision taken by the British Government on 11 July 1939 is binding on the Parties.

[pp. 158-160 J.D.O. Bedjaoui, Ranjeva and Koroma] 34. We agree with the majority of the Court that the British decision of 1939 is not an arbitral award and therefore does not have the force of res judicata. We support the Court's reasoning and agree with it that the characteristic features of an arbitral award are lacking here. The British decision is a political or administrative decision and, as such, constitutes a simple historical fact.

35. However, according to the Judgment, that decision is still legally binding today on the two Parties, as a result of the consent given by each of them in 1938 to the local representatives of the United Kingdom. We wish to state our total disagreement on this point.

36. As the Judgment pointed out, correctly noting in passing the similarity between the present case and the Dubai/Sharjah case, the consent of the Rulers was of course required. We accept that, in the circumstances of this case and taking due account of the nature of the relationship between Bahrain and Qatar and the United Kingdom, such consent was necessary. But, in the Judgment now handed down by the Court, that consent is artificially examined, detached from its temporal context and, in sum, analysed in a totally abstract manner.

37. In order to reach the conclusion that the British decision was and remains binding on the Parties, the Judgment deemed the consent of the Ruler of Qatar to be indivisible. Since consent to the procedure implied consent to the substantive decision, the protests of the

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Sheikh of Qatar were accordingly held to be without legal force: made "after the event", they simply expressed the disappointment of their author.

38. In the present case, the indivisibility of the consent has not been established; it is simply presumed. In political terms, the nature of the relationship between the protecting Power and the protected State did not permit the use of any language other than the deferential terms in which the local rulers expressed themselves; thus to interpret that language as evidence of consent to the renunciation of territorial jurisdiction is in reality to give the opposite sense to the natural meaning of the words and conduct in 1939. In legal terms, when the Judgment invokes against Qatar its consent to the substance of the 1939 decision – a consent that was in reality hypothetical – , it reproaches Qatar with its failure to abide by a decision with which it had already been threatened in veiled terms since 1937. Independently of the fraudulent nature of the manoeuvres of the British representatives, the question is whether Qatar was legally bound to abide by the decision. The answer must be a negative one. In the matter of territory, consent to a renunciation of sovereignty cannot be presumed; the renunciation must be expressed and established in unequivocal terms. This is an absolute rule in international law. Agreement to a power on the part of the United Kingdom to dispose of sovereignty over the Hawar Islands has not been established. Consent to the proceedings, even supposing that it was validly given – quod non – did not signify automatic consent to the final decision. There is nothing in the evidence submitted to the Court, and in particular in the letters of Qatar cited in the Judgment, to show that Qatar gave its consent to be legally bound by the future decision.

39. We repeat that, in a case such as this, consent had to be express, informed and freely given. This was not the case. Paragraph 141 of the Judgment, which deals with the question of the formal validity of Qatar's consent, is determinative in that it demonstrates, with a certain surrealism, the construction, unfounded in reality, which the Judgment places upon that consent. This paragraph is worth quoting: "while it is true that the competent British officials proceeded on the premise that Bahrain possessed prima facie title to the islands and that the burden of proving the opposite lay on the Ruler of Qatar, Qatar cannot maintain that it was contrary to justice to proceed on the basis of this premise when Qatar had been informed before agreeing to the procedure that

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this would occur and had consented to the proceedings being conducted on that basis"91. In effect, already in this one paragraph, the Court's Judgment stands at the threshold of the issue of fraud, only then to shy away from it.

[p. 237 S.O. Kooijmans] 45. In its pleadings Bahrain contended that the 1939 decision, by which the Hawar Islands were attributed to it, is an arbitral award which has the character of res judicata and consequently must be respected by the Court. The Court has rejected this argument and has found that the decision does not constitute an arbitral award since it has not been taken by judges chosen by the Parties and ruling either on the basis of the law or ex aequo et bono (Judgment, para. 114). I share this aspect of the Court's perception of the 1939 decision. The concept of arbitration may be used in a very broad sense in that it encompasses all kinds of third–party settlement. When however the character of res judicata is attributed to a settlement awarded by a third party, a much narrower definition of the term "arbitration" is required. This does not only hold true for modern times. Arbitration as a procedure for dispute settlement with a final and binding character has for centuries been seen as requiring an agreement concluded by two parties to a dispute on the basis of formal equality to entrust the resolution of that dispute to a mutually agreed third party and to comply with the decision given by that third party. It is the combination of consent to the procedure and of commitment to compliance which produces the res judicata character of the decision, although the procedure itself is subject to certain requirements of fairness and equality of arms. What is decisive, however, is that the third party does not act on its own authority or of the instigation of only one of the parties to the dispute.

[pp. 363-365 D.O. Torres Bernárdez] 302. International arbitration, judicial settlement, and other peaceful means of settlement are based upon the principle of consensuality. The parties to the dispute must give their consent to the arbitration as well as to the definition of the other elements referred to above. But Qatar and Bahrain did not conclude a convention to arbitrate in 1938, did not choose their arbitrator or arbitrators, did not conclude a compromis governing the arbitration and defining its object, the applicable law, rules of procedure, etc. Yet if it was not an international arbitration, how could the 1939 British "decision" (independently of its validity) be res judicata or have become so in international law? In fact, the 1939 British "decision" is not the product of a jurisdictional organ or of a political organ acting in casu in a 91 Emphasis added.

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Dispute Settlement

jurisdictional capacity. Thus the "decision" cannot have the finality of res judicata; it does not express the legal truth (vérité légale) non–varietur. Political decisions may have binding effects but not res judicata binding effects. For example, the binding decision which the Security Council of the United Nations may adopt under Chapter VII of the United Nations Charter are binding for Member States but they lack the force of res judicata. The Council may change those decisions at any moment.

303. The two separate letters of 11 July 1939 sent by the British political authorities in the Gulf to the respective Rulers of Qatar and Bahrain referred to above are mere diplomatic communications or notifications. They do not enclose or append any arbitral award (sentence), whether reasoned or not. International arbitral awards, such as the Judgments of this Court, are however formal international documents and are the result of equally formal international procedures. Res judicata is precisely a notion of procedural law intrinsically linked to the form adopted by the procedure and decision concerned and the jurisdictional character of the organ adopting it. Independently of the name given to it (arbitration, adjudication, enquiry, etc.), the 1938–1939 British "procedure" was somewhat far removed from that, as recognized in British documents subsequent to the 1939 "decision". For example, the concluding paragraph of Long's confidential Foreign Office minutes of 10 June 1964 contains the following: "Neither of the two Rulers was asked beforehand to promise his consent to the award, nor afterwards to give it. HMG simply 'made' the award. Although it followed the form of an arbitration to some extent, it was imposed from above, and no question of its validity or otherwise was raised. It was quite simply a decision which was taken for practical purpose in order to clear the ground for oil concessions." (Reply of Bahrain, Vol. 2, Ann. 2, p. 4; emphasis added.)

304. The purpose was not therefore to decide the matter through an arbitration consented to by the Rulers of Qatar and Bahrain. There was no international arbitration between Qatar and Bahrain in 1938–1939 and the 1939 British "decision" communicated to the Rulers was not an international arbitral award carrying with it an international legal obligation to submit in good faith to the "decision". The main consequence of this conclusion for the present case is, in my view, that the 1939 British "decision" is not applicable law between the States Parties to the present case. Internationally, the "decision" is no more than an historical fact or event like many others in the present case. It does not make law governing the Parties' mutual relations.

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Within the British domestic order, it may be an act of the British Government or of the British Administration or something else, but at the international level it is certainly not a legally binding international arbitral award for any of the Parties to the present case.

12. DIPLOMACY AND CONSULAR MATTERS

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 492] 74. Article 36, paragraph 1, establishes an interrelated régime 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.

[pp. 492-494] 75. Germany further contends that "the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers". Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground.

Dispute Settlement

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Within the British domestic order, it may be an act of the British Government or of the British Administration or something else, but at the international level it is certainly not a legally binding international arbitral award for any of the Parties to the present case.

12. DIPLOMACY AND CONSULAR MATTERS

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 492] 74. Article 36, paragraph 1, establishes an interrelated régime 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.

[pp. 492-494] 75. Germany further contends that "the breach of Article 36 by the United States did not only infringe upon the rights of Germany as a State party to the [Vienna] Convention but also entailed a violation of the individual rights of the LaGrand brothers". Invoking its right of diplomatic protection, Germany also seeks relief against the United States on this ground.

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Diplomacy and Consular Matters

Germany maintains that the right to be informed of the rights under Article 36, paragraph 1 (b), of the Vienna Convention, is an individual right of every national of a State party to the Convention who enters the territory of another State party. It submits that this view is supported by the ordinary meaning of the terms of Article 36, paragraph 1 (b), of the Vienna Convention, since the last sentence of that provision speaks of the "rights" under this subparagraph of "the person concerned", i.e., of the foreign national arrested or detained. Germany adds that the provision in Article 36, paragraph 1 (b), according to which it is for the arrested person to decide whether consular notification is to be provided, has the effect of conferring an individual right upon the foreign national concerned. In its view, the context of Article 36 supports this conclusion since it relates to both the concerns of the sending and receiving States and to those of individuals. According to Germany, the travaux préparatoires of the Vienna Convention lend further support to this interpretation. In addition, Germany submits that the "United Nations Declaration on the human rights of individuals who are not nationals of the country in which they live," adopted by General Assembly resolution 40/144 on 13 December 1985, confirms the view that the right of access to the consulate of the home State, as well as the information on this right, constitute individual rights of foreign nationals and are to be regarded as human rights of aliens.

76. The United States questions what this additional claim of diplomatic protection contributes to the case and argues that there are no parallels between the present case and cases of diplomatic protection involving the espousal by a State of economic claims of its nationals. The United States maintains that the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the claims of its nationals through diplomatic protection, are legally different concepts. The United States contends, furthermore, that rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance. It maintains that the treatment due to individuals under the Convention is inextricably linked to and derived from the right of the State, acting through its

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consular officer, to communicate with its nationals, and does not constitute a fundamental right or a human right. The United States argues that the fact that Article 36 by its terms recognizes the rights of individuals does not determine the nature of those rights or the remedies required under the Vienna Convention for breaches of that Article. It points out that Article 36 begins with the words "[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State," and that this wording gives no support to the notion that the rights and obligations enumerated in paragraph 1 of that Article are intended to ensure that nationals of the sending State have any particular rights or treatment in the context of a criminal prosecution. The travaux préparatoires of the Vienna Convention according to the United States, do not reflect a consensus that Article 36 was addressing immutable individual rights, as opposed to individual rights derivative of the rights of States.

77. 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

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of these provisions, the Court concludes that Article 36, paragraph 1, 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.

78. At the hearings, Germany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right, but has today assumed the character of a human right. In consequence, Germany added, "the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative". The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard.

[pp. 497-498] 88. Article 36, paragraph 2, of the Vienna Convention reads as follows: "The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended."

89. 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 1, 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).

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90. 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 1, 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.

91. In this case, Germany had the right at the request of the LaGrands "to arrange for [their] legal representation" and was eventually able to provide some assistance to that effect. By that time, however, because of the failure of the American authorities to comply with their obligation under Article 36, paragraph 1 (b), the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitutional grounds. 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 1, prevented Germany, in a timely fashion, 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.

[p. 536 D.O. Oda] 23. ... I see no convincing argument to support the determination of the Court that "Article 36, paragraph 1, creates individual rights for the detained person in addition to the rights accorded the sending State, and ... consequently the reference to 'rights'

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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" (Judgment, para. 89).

24. I shall take the liberty of expressing my puzzlement at the reason for and relevance of the Court's reference in the Judgment to Article 36, paragraph 1 (c), of the Convention in connection with the rights of a detained person. I believe that this provision was included in the Convention simply to provide for the situation in which an arrested foreign national waives consular notification in order to prevent his criminal conduct or even his presence in a foreign country from becoming known in his home country; that provision may not have any further significance.

[p. 537 D.O. Oda] 27. I am not convinced of the correctness of the Court's holding that the Vienna Convention on Consular Relations grants to foreign individuals any rights beyond those which might necessarily be implied by the obligations imposed on States under that Convention. In addition, I cannot but think that the Court holds the view that the Vienna Convention on Consular Relations grants more extensive protection and greater or broader individual rights to foreign nationals (in this case, German nationals in the United States) than would be enjoyed by nationals in their home countries (in this case, Americans in the United States). If the Vienna Convention on Consular Rights is to be interpreted as granting rights to individuals, those rights are strictly limited to those corresponding to the obligations borne by the States under the Convention and do not include substantive rights of the individual, such as the rights to life, property, etc. I find the Judgment devoid of any convincing explanation of this point.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [pp. 178-179 D.O. Van den Wyngaert] 72. Mr. Yerodia was never arrested, either when he visited Belgium officially in June 200092 or thereafter. Had it applied the only relevant

92

Mr. Yerodia’s visit to Belgium is not mentioned in the Judgment because the Parties were rather unclear on this point. Yet, it seems that Mr. Yerodia effectively visited Belgium on 17 June 2000. This was reported in the media (see the statement by the Minister for Foreign Affairs in De Standaard, 7 July 2000) and also in a question that was put in Parliament to the

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467

provision of conventional international law to the dispute, Article 21, paragraph 2, of the Special Missions Convention, the Court could not have reached its decision. According to this article, Foreign Ministers "when they take part in a special mission of the sending State, shall enjoy in the receiving State or in third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law"93. In the present dispute, this could only lead to the conclusion that there was no violation: the warrant was never executed, either in Belgium, or in third countries.

73. Belgium accepted, as a matter of international courtesy, that the warrant could not be executed against Mr. Yerodia were he to have visited Belgium officially. This was explicitly mentioned in the warrant: the warrant was not enforceable and was in fact not served on him or executed when Mr. Yerodia came to Belgium on an official visit in June 2001. Belgium thus respected the principle, contained in Article 21 of the Special Missions Convention, that is not a statement of customary international law but only of international courtesy94.

74. These are the only objective elements the Court should have looked at. The subjective elements, i.e., whether the warrant had a psychological effect on Mr. Yerodia or whether it was perceived as offensive by the Congo (cf. the term iniuria used by Maître Rigaux throughout his pleadings in October 200195 and the term capitis diminutio used by Maître Vergès during his pleadings in November 200096) was irrelevant for the dispute. The warrant only had a potential legal effect on Mr. Yerodia as a private person in case he would have visited Belgium privately, quod non.

75. In its dispositif (Judgment, para. 78 (2)), the Court finds that Belgium failed to respect the immunity from criminal jurisdiction and inviolability for incumbent Foreign Ministers. I have Minister of Justice. See oral question put by Mr. Tony Van Parys to the Minister of Justice concerning “the political intervention by the Gouvernment in the proceedings against the Congolese Minister of Foreign Affairs, Mr. Yerodia”, [translation by the Registry], Chambre des représentants de la Belgique, Compte Rendu Intégral avec compte rendu analytique, Commission de la Justice, 14 Nov. 2000, CRIV 50 COM 294, p. 12. Despite the fact that this fact is not, as such, recorded in the documents that were before the International Court of Justice, I believe the Court could have taken judicial notice of it. 93

Supra, para. 18.

94

See the statement of the International Law Commission’s Special Rapporteur, referred to supra, para. 17.

95

CR 2001/5, p. 14.

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Diplomacy and Consular Matters

already explained why, in my opinion, there has been no infringement of the rules on immunity from criminal jurisdiction. I find it hard to see how, in addition (the Court using the word "and"), Belgium could have infringed the inviolability of Mr. Yerodia by the mere issuance of a warrant that was never enforced. The Judgment does not explain what is meant by the word "inviolability", and simply juxtaposes it to the word "immunity". This may give rise to confusion. Does the Court put the mere issuance of an order on the same footing as the actual enforcement of the order? Would this also mean that the mere act of investigating criminal charges against a Foreign Minister would be contrary to the principle of inviolability? Surely, in the case of diplomatic agents, who enjoy absolute immunity and inviolability under the 1961 Vienna Convention on Diplomatic Relations97, allegations of criminal offences may be investigated as long as the agent is not interrogated or served with an order to appear. This view is clearly stated by Jean Salmon98. Jonathan Brown notes that, in the case of a diplomat, the issuance of a charge or summons is probably contrary to the diplomat’s immunity, whereas its execution would be likely to infringe the agent’s inviolability99. If the Court’s dispositif were to be interpreted as to mean that mere investigations of criminal charges against Foreign Ministers would infringe their inviolability, the implication would be that Foreign Ministers enjoy greater protection than diplomatic agents under the Vienna Convention. This would clearly go beyond what is accepted under international law in the case of diplomats.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[p. 38] 47. The Court would recall that it is in any event essential to have in mind the nature of the Vienna Convention. It lays down certain standards to be observed by all States parties, with a view to the "unimpeded conduct of consular relations", which, as

96

144 CR 2000/32.

97

Convention on Diplomatic Relations, Vienna, 18 Apr. 1961, UNTS, Vol. 500, p. 95.

98

J. Salmon, Manuel de droit diplomatique, Brussels, Bruylant, 1994, p. 304.

99

J. Brown, “Diplomatic immunity: State Practice Under the Vienna Convention on Diplomatic Relations”, 37 ICLQ 1988, p. 53.

Diplomacy and Consular Matters

469

the Court observed in 1979, is important in present–day international law "in promoting the development of friendly relations among nations, and ensuring protection and assistance for aliens resident in the territories of other States" (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Order of 15 December 1979, I.C.J. Reports 1979, pp. 19–20, para. 40). Even if it were shown, therefore, that Mexico’s practice as regards the application of Article 36 was not beyond reproach, this would not constitute a ground of objection to the admissibility of Mexico’s claim. The fifth objection of the United States to admissibility cannot therefore be upheld.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 275-276] 330. First, as to alleged acts of maltreatment committed against Ugandan diplomats finding themselves both within embassy premises and elsewhere, the Court observes that Uganda’s second counter-claim aims at obtaining reparation for the injuries suffered by Uganda itself as a result of the alleged violations by the DRC of Article 29 of the Vienna Convention on Diplomatic Relations. Therefore Uganda is not exercising diplomatic protection on behalf of the victims but vindicating its own rights under the Vienna Convention. Accordingly, the Court finds that the failure to exhaust local remedies does not pose a barrier to Uganda’s counter-claim under Article 29 of the Vienna Convention on Diplomatic Relations, and the claim is thus admissible.

331. As to acts of maltreatment committed against other persons on the premises of the Ugandan Embassy at the time of the incidents, the Court observes that the substance of this counter-claim currently before the Court as a direct claim, brought by Uganda in its sovereign capacity, concerning its Embassy in Kinshasa, falls within the ambit of Article 22 of the Vienna Convention on Diplomatic Relations. Consequently, the objection advanced by the DRC to the admissibility of this part of Uganda’s second counter-claim cannot be upheld, and this part of the counter-claim is also admissible.

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[pp. 277-278] 334. Regarding the merits of Uganda’s second counter-claim, the Court finds that there is sufficient evidence to prove that there were attacks against the Embassy and acts of maltreatment against Ugandan diplomats at Ndjili International Airport.

335. The Court observes that various Ugandan diplomatic Notes addressed to the Congolese Foreign Ministry or to the Congolese Embassy in Kampala make reference to attacks by Congolese troops against the premises of the Ugandan Embassy and to the occupation by the latter of the buildings of the Chancery. In particular, the Court considers important the Note of 18 December 1998 from the Ministry of Foreign Affairs of Uganda to the Ministry of Foreign Affairs of the DRC, protesting against Congolese actions in detriment of the Ugandan Chancery and property therein in September and November 1998, in violation of international law and the 1961 Vienna Convention on Diplomatic Relations. This Note deserves special attention because it was sent in duplicate to the Secretary-General of the United Nations and to the Secretary-General of the OAU, requesting them to urge the DRC to meet its obligations under the Vienna Convention. The Court takes particular note of the fact that the DRC did not reject this accusation at the time at which it was made.

336. Although some of the other evidence is inconclusive or appears to have been prepared unilaterally for purposes of litigation, the Court was particularly persuaded by the Status Report on the Residence and Chancery, jointly prepared by the DRC and Uganda under the Luanda Agreement. The Court has given special attention to this report, which was prepared on site and was drawn up with the participation of both Parties. Although the report does not offer a clear picture regarding the alleged attacks, it does demonstrate the resulting long-term occupation of the Ugandan Embassy by Congolese forces.

337. Therefore, the Court finds that, as regards the attacks on Uganda’s diplomatic premises in Kinshasa, the DRC has breached its obligations under Article 22 of the Vienna Convention on Diplomatic Relations.

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471

338. Acts of maltreatment by DRC forces of persons within the Ugandan Embassy were necessarily consequential upon a breach of the inviolability of the Embassy premises prohibited by Article 22 of the Vienna Convention on Diplomatic Relations. This is true regardless of whether the persons were or were not nationals of Uganda or Ugandan diplomats. In so far as the persons attacked were in fact diplomats, the DRC further breached its obligations under Article 29 of the Vienna Convention.

339. Finally, there is evidence that some Ugandan diplomats were maltreated at Ndjili International Airport when leaving the country. The Court considers that a Note of Protest sent by the Embassy of Uganda to the Ministry of Foreign Affairs of the DRC on 21 August 1998, i.e. on the day following the incident, which at the time did not lead to a reply by the DRC denying the incident, shows that the DRC committed acts of maltreatment of Ugandan diplomats at Ndjili International Airport. The fact that the assistance of the dean of the diplomatic corps (Ambassador of Switzerland) was needed in order to organize an orderly departure of Ugandan diplomats from the airport is also an indication that the DRC failed to provide effective protection and treatment required under international law on diplomatic relations. The Court therefore finds that, through acts of maltreatment inflicted on Ugandan diplomats at the airport when they attempted to leave the country, the DRC acted in violation of its obligations under international law on diplomatic relations.

340. In summary, the Court concludes that, through the attacks by members of the Congolese armed forces on the premises of the Ugandan Embassy in Kinshasa, and their maltreatment of persons who found themselves at the Embassy at the time of the attacks, the DRC breached its obligations under Article 22 of the Vienna Convention on Diplomatic Relations. The Court further concludes that by the maltreatment by members of the Congolese armed forces of Ugandan diplomats on Embassy premises and at Ndjili International Airport, the DRC also breached its obligations under Article 29 of the Vienna Convention.

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Diplomacy and Consular Matters

[pp. 278-279] 341. As to the claim concerning Ugandan public property, the Court notes that the original wording used by Uganda in its Counter-Memorial was that property belonging to the Government of Uganda and Ugandan diplomats had been "confiscated", and that later pleadings referred to "expropriation" of Ugandan public property. However, there is nothing to suggest that in this case any confiscation or expropriation took place in the technical sense. The Court therefore finds neither term suitable in the present context. Uganda appears rather to be referring to an illegal appropriation in the general sense of the term. The seizures clearly constitute an unlawful use of that property, but no valid transfer of the title to the property has occurred and the DRC has not become, at any point in time, the lawful owner of such property.

342. Regarding evidentiary issues, the Status Report on the Residence and Chancery, jointly prepared by the DRC and Uganda under the Luanda Agreement, provides sufficient evidence for the Court to conclude that Ugandan property was removed from the premises of the official residence and Chancery. It is not necessary for the Court to make a determination as to who might have removed the property reported missing. 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 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). Therefore, although the evidence available is insufficient to identify with precision the individuals who removed Ugandan property, the mere fact that items were removed is enough to establish that the DRC breached its obligations under the Vienna Convention on Diplomatic Relations. At this stage, the Court considers that it has found sufficient evidence to hold that the removal of Ugandan property violated the rules of international law on diplomatic relations, whether it was committed by actions of the DRC itself or by the DRC’s failure to prevent such acts on the part of armed militia groups. Similarly, the Court need not establish a precise list of items removed − a point of disagreement between the Parties − in order to conclude at this stage of the

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473

proceedings that the DRC breached its obligations under the relevant rules of international law. Although these issues will become important should there be a reparation stage, they are not relevant for the Court’s finding on the legality or illegality of the acts of the DRC.

343. In addition to the issue of the taking of Ugandan public property described in paragraph 309, above, Uganda has specifically pleaded that the removal of "almost all of the documents in their archives and working files" violates Article 24 of the Vienna Convention on Diplomatic Relations. The same evidence discussed in paragraph 342 also supports this contention, and the Court accordingly finds the DRC in violation of its obligations under Article 24 of the Vienna Convention.

344. The Court notes that, at this stage of the proceedings, it suffices for it to state that the DRC bears responsibility for the breach of the inviolability of the diplomatic premises, the maltreatment of Ugandan diplomats at the Ugandan Embassy in Kinshasa, the maltreatment of Ugandan diplomats at Ndjili International Airport, and for attacks on and seizure of property and archives from Ugandan diplomatic premises, in violation of international law on diplomatic relations. It would only be at a subsequent phase, failing an agreement between the Parties, that the specific circumstances of these violations as well as the precise damage suffered by Uganda and the extent of the reparation to which it is entitled would have to be demonstrated.

13. INTERNATIONAL ECONOMIC LAW 13.1. General Questions Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 251-252] 244. The Court finds that it cannot uphold the contention of the DRC that Uganda violated the principle of the DRC’s sovereignty over its natural resources (see paragraph 226 above). The Court recalls that the principle of permanent

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proceedings that the DRC breached its obligations under the relevant rules of international law. Although these issues will become important should there be a reparation stage, they are not relevant for the Court’s finding on the legality or illegality of the acts of the DRC.

343. In addition to the issue of the taking of Ugandan public property described in paragraph 309, above, Uganda has specifically pleaded that the removal of "almost all of the documents in their archives and working files" violates Article 24 of the Vienna Convention on Diplomatic Relations. The same evidence discussed in paragraph 342 also supports this contention, and the Court accordingly finds the DRC in violation of its obligations under Article 24 of the Vienna Convention.

344. The Court notes that, at this stage of the proceedings, it suffices for it to state that the DRC bears responsibility for the breach of the inviolability of the diplomatic premises, the maltreatment of Ugandan diplomats at the Ugandan Embassy in Kinshasa, the maltreatment of Ugandan diplomats at Ndjili International Airport, and for attacks on and seizure of property and archives from Ugandan diplomatic premises, in violation of international law on diplomatic relations. It would only be at a subsequent phase, failing an agreement between the Parties, that the specific circumstances of these violations as well as the precise damage suffered by Uganda and the extent of the reparation to which it is entitled would have to be demonstrated.

13. INTERNATIONAL ECONOMIC LAW 13.1. General Questions Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 251-252] 244. The Court finds that it cannot uphold the contention of the DRC that Uganda violated the principle of the DRC’s sovereignty over its natural resources (see paragraph 226 above). The Court recalls that the principle of permanent

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sovereignty over natural resources is expressed in General Assembly resolution 1803 (XVII) of 14 December 1962 and further elaborated in the Declaration on the Establishment of a New International Economic Order (General Assembly resolution 3201 (S.VI) of 1 May 1974) and the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (XXIX) of 12 December 1974). While recognizing the importance of this principle, which is a principle of customary international law, the Court notes that there is nothing in these General Assembly resolutions which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the DRC’s third submission. The Court does not believe that this principle is applicable to this type of situation.

*

13.2. Multilateral Instruments

13.3. Bilateral Treaties of Friendship and Commerce

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[p. 200] 81. In 1996 the Court was concerned only to resolve the questions of its jurisdiction raised by the preliminary objection presented by the United States. 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 1 (I.C.J. Reports 1996 (II), 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.

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82. 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" (I.C.J. Reports 1996 (II), 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". The Court observes that it is oil exports from Iran to the United States that are relevant to the case, not such exports in general. The United States has argued that for the purpose of interpreting Article X, paragraph 1, what must be considered is whether oil from the specific platforms attacked was, or would have been, exported to the United States. In this connection it questions whether the platforms could be said to be on the "territory" of Iran, inasmuch as they are outside Iran’s territorial sea, though upon its continental shelf, and within its exclusive economic zone. The Court does not however consider tenable an interpretation of the 1955 Treaty that would have differentiated, for the purposes of "freedom of commerce", between oil produced on the land territory or the territorial sea of Iran, and oil produced on its continental shelf, in the exercise of its sovereign rights of exploration and exploitation of the shelf, and parallel rights over the exclusive economic zone.

[pp. 201-202] 85. Before turning to the facts and to the details of Iran’s claim, the Court will mention one consideration advanced by the United States which, if upheld, would render unnecessary any further examination of the effects of the attacks on the platforms. The United States alleges, as has already been noted in connection with its argument founded on self–defence, that military forces were stationed on the platforms and played a role in the attacks, attributable to Iran, on United States vessels and other neutral shipping (see for example the communication from the United States to the United Nations Security Council of 19 October 1987, quoted in paragraph 48 above). On this basis, the United States argues that the guarantee of "freedom of commerce" under Article X, paragraph 1, of the 1955 Treaty cannot have been intended to shield one party’s military activities against the other, and that therefore the coverage of that Article cannot be extended to the platforms in question. The United States has not succeeded, to the satisfaction of the Court, in establishing that the limited military presence on the

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platforms, and the evidence as to communications to and from them, could be regarded as justifying treating the platforms as military installations (see paragraph 76 above). For the same reason, the Court is unable to regard them as outside the protection afforded by Article X, paragraph 1, of the 1955 Treaty.

[pp. 203-204] 89. The Court notes that the conclusion which the United States is inviting the Court to reach is, in effect, that military attacks on installations used for commercial oil exploitation, which caused – and were intended to cause – very considerable damage to those installations, proved to be limited in their effects to the extent necessary to avoid a breach of a specific commercial treaty. Yet the Court notes also that there is no evidence that the relevant military orders were devised with this outcome in mind, or even that the existence and scope of the treaty was taken into account at all at the time of the attacks. 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. In destroying the platforms, whose function, taken as a whole, was precisely to produce and transport oil, the military actions made commerce in oil, at that time and from that source, impossible, and to that extent prejudiced freedom of commerce. While the oil, when it left the platform complexes, was not yet in a state to be safely exported, the fact remains that it could be already at that stage destined for export, and the destruction of the platform prevented further treatment necessary for export. The Court therefore finds that the protection of freedom of commerce under Article X, paragraph 1, of the 1955 Treaty applied to the platforms attacked by the United States, and the attacks thus impeded Iran’s freedom of commerce. However, the question remains whether there was in this case an interference with freedom of commerce "between the territories of the High Contracting Parties".

[pp. 204-205] 91. 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). It

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appears also to be accepted by both Parties that the oil or petroleum products reaching the United States during this period were to some extent derived from crude oil produced by the platforms that were later subjected to attack. Iran has explained that in peace time it had sold crude oil in cargoes where the producing field was specifically identified, but during the Iran–Iraq war all Iranian light crudes and heavy crudes were mixed and sold generically, as either "Iranian light" or "Iranian heavy". Iran has asserted, and the United States has not denied, that there was a market for Iranian crude oil directly imported into the United States up to the issuance of Executive Order 12613 of 29 October 1987. Thus Iranian oil exports did up to that time constitute the subject of "commerce between the territories of the High Contracting Parties" within the meaning of Article X, paragraph 1, of the 1955 Treaty.

92. At the time of the attack of 19 October 1987 no oil whatsoever was being produced or processed by the Reshadat and Resalat platforms, since these had been put out of commission by earlier Iraqi attacks. While it is true that the attacks caused a major setback to the process of bringing the platforms back into production, there was at the moment of the attacks on these platforms no ongoing commerce in oil produced or processed by them. Iran however indicates that at the time of the attack the platforms were nearly repaired and were about to resume production; it argues that there was therefore an interference with "freedom of commerce", when commerce is conceived as a pattern of trade over the years and not a temporary phenomenon. 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 1, of the 1955 Treaty. 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 (II), p. 819, para. 50; emphasis added).

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[pp. 206-208] 96. The Court sees no reason to question the view that, over the period during which the United States embargo was in effect, petroleum products were reaching the United States, in considerable quantities, that were derived in part from Iranian crude oil. Executive Order 12613 contained an exception (Section 2 (b)) whereby the embargo was not to apply to "petroleum products refined from Iranian crude oil in a third country". It could reasonably be argued that, had the platforms not been attacked, some of the oil that they would have produced would have been included in the consignments processed in Western Europe so as to produce the petroleum products reaching the United States. 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. What the Court has to determine is not whether something that could be designated "Iranian" oil entered the United States, in some form, during the currency of the embargo; it is whether there was "commerce" in oil between the territories of Iran and the United States during that time, within the meaning given to that term in the 1955 Treaty.

97. 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. What Iran regards as "indirect" commerce in oil between itself and the United States involved a series of commercial transactions: a sale by Iran of crude oil to a customer in Western Europe, or some third country other than the United States; possibly a series of intermediate transactions; and ultimately the sale of petroleum products to a customer in the United States. This is not "commerce" between Iran and the United States, but commerce between Iran and an intermediate purchaser; and "commerce" between an intermediate seller and the United States. After the completion of the first contract Iran had no ongoing financial interest in, or legal responsibility for, the goods transferred. If, for example, the process of "indirect commerce" in Iranian oil through Western European refineries, as described above, were interfered with at some stage subsequent to Iran’s having parted with a consignment, Iran’s commitment and entitlement to freedom of commerce vis–à–vis the United States could not be regarded as having been violated.

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98. The Court thus concludes, with regard to the attack of 19 October 1987 on the Reshadat platforms, that there was at the time of those attacks no commerce between the territories of Iran and the United States in respect of oil produced by those platforms and the Resalat platforms, inasmuch as the platforms were under repair and inoperative; and that the attacks cannot therefore be said to have infringed the freedom of commerce in oil between the territories of the High Contracting Parties protected by Article X, paragraph 1, of the 1955 Treaty, particularly taking into account the date of entry into force of the embargo effected by Executive Order 12613. The Court notes further that, at the time of the attacks of 18 April 1988 on the Salman and Nasr platforms, all commerce in crude oil between the territories of Iran and the United States had been suspended by that Executive Order, so that those attacks also cannot be said to have infringed the rights of Iran under Article X, paragraph 1, of the 1955 Treaty.

99. The Court is therefore unable to uphold the submissions of Iran, that in carrying out those attacks the United States breached its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty. In view of this conclusion, the Iranian claim for reparation cannot be upheld.

[pp. 214-217] 119. Having disposed of all objections of Iran to its jurisdiction over the counter–claim, and to the admissibility thereof, the Court has now to consider the counter–claim on its merits. To succeed on its counter–claim, the United States must show that: (a) its freedom of commerce or freedom of navigation between the territories of the High Contracting Parties to the 1955 Treaty was impaired; and that (b) the acts which allegedly impaired one or both of those freedoms are attributable to Iran. The Court would recall that Article X, paragraph 1, of the 1955 Treaty does not protect, as between the Parties, freedom of commerce or freedom of navigation in general. As already noted above (paragraph 90), the provision of that paragraph contains an important territorial limitation. In order to enjoy the protection provided by that text, the commerce or the navigation is to be between the territories of the United States and Iran.

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The United States bears the burden of proof that the vessels which were attacked were engaged in commerce or navigation between the territories of the United States and Iran.

120. …

121. None of the vessels described by the United States as being damaged by Iran’s alleged attacks was engaged in commerce or navigation "between the territories of the two High Contracting Parties". Therefore, the Court concludes that there has been no breach of Article X, paragraph 1, of the 1955 Treaty in any of the specific incidents involving these ships referred to in the United States pleadings.

[pp. 217-218] 122. The United States has also presented its claim in a generic sense. It has asserted that as a result of the cumulation of attacks on United States and other vessels, laying mines and otherwise engaging in military actions in the Persian Gulf, Iran made the Gulf unsafe, and thus breached its obligation with respect to freedom of commerce and freedom of navigation which the United States should have enjoyed under Article X, paragraph 1, of the 1955 Treaty.

123. The Court cannot disregard the factual context of the case, as described in paragraphs 23 and 44 above. While it is a matter of public record that as a result of the Iran–Iraq war navigation in the Persian Gulf involved much higher risks, that alone is not sufficient for the Court to decide that Article X, paragraph 1, of the 1955 Treaty was breached by Iran. It is for the United States to show that there was an actual impediment to commerce or navigation between the territories of the two High Contracting Parties. However, according to the material before the Court the commerce and navigation between Iran and the United States continued during the war until the issuance of the United States embargo on 29 October 1987, and subsequently at least to the extent permitted by the exceptions to the embargo. The United States has not demonstrated that the alleged acts of Iran actually infringed the freedom of commerce or of navigation between the territories of the United States and Iran.

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The Court considers that, in the circumstances of this case, a generic claim of breach of Article X, paragraph 1, of the 1955 Treaty cannot be made out independently of the specific incidents whereby, it is alleged, the actions of Iran made the Persian Gulf unsafe for commerce and navigation, and specifically for commerce and navigation between the territories of the parties. However, the examination in paragraph 120 above of those incidents shows that none of them individually involved any interference with the commerce and navigation protected by the 1955 Treaty; accordingly the generic claim of the United States cannot be upheld.

124. The Court has thus found that the counter–claim of the United States concerning breach by Iran of its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty, whether based on the specific incidents listed, or as a generic claim, must be rejected; there is therefore no need for it to consider, under this head, the contested issues of attribution of those incidents to Iran. In view of the foregoing, the United States claim for reparation cannot be upheld.

[pp. 267-268 D.O. Al–Khasawneh] 3. In the first place, what is at issue here is not whether oil from the destroyed platforms was impeded from being traded between the territories of the two Parties at the time of the attacks, but rather that the possibility of such oil flowing and being traded was impeded. The 1955 Treaty protects the freedom of commerce, which must mean commerce actual and potential. The Court could not have been clearer when it said in the 1996 Judgment: "50. The Court should not in any event overlook that Article X, paragraph 1, of the Treaty of 1955 does not strictly speaking protect ‘commerce’ but ‘freedom of commerce’. Any act which would impede that ‘freedom’ is thereby prohibited. Unless such freedom is to be rendered illusory, the possibility must be entertained that it 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." (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 50.)

4. Secondly, it seems that, factually, Iranian oil continued to flow to the United States even after

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the adoption of Executive Order 12613 dated 29 October 1987, for an exception was made in that Order in Section 2 (b) which reads: "[t]he prohibition contained in Section 1 shall not apply to: (b) petroleum products refined from Iranian crude oil in a third country". It has been argued that such oil undergoes a metamorphosis upon being refined and mixed in third countries so that the final product could no longer be regarded as Iranian, but the Executive Order itself by speaking of "petroleum products refined from Iranian crude oil" clearly shows that this final product was viewed by the United States as easily traceable back to its Iranian origin. Moreover, international trade law concepts are ill–suited to be used as a yardstick against which a treaty– protected freedom of commerce can be measured. For such a treaty–protected freedom to be infringed it is sufficient to show that a flow of Iranian oil into the United States in the form of refined products and a correspondent outflow of capital that ultimately reached Iran to pay for such products took place. There is ample evidence that this was the case.

5. Thirdly, the reasoning is singularly unpersuasive in its attempts at showing a distinction between protected direct commerce and unprotected indirect commerce. There is nothing in the 1955 Treaty or in similar treaties to which the United States is party to suggest that only direct commerce was protected. Indeed a simple textual analysis of the provisions of the 1955 Treaty with the aim of ascertaining the definition of the concept of freedom of commerce used therein would reveal that the Treaty contemplated the possibility of the products of one State reaching the territory of the other indirectly. Thus Article VIII provides: "1. Each High Contracting Party shall accord to products of the other High Contracting Party, from whatever place and by whatever type of carrier arriving, and to products destined for exportation to the territories of such other High Contracting Party, by whatever route and by whatever type of carrier, treatment no less favourable than that ..." (emphasis added).

6. I believe the arguments just made will show that the majority in this Court have followed a formalistic and disconnected approach in their reasoning with regard to the violation of the United States of its obligations under Article X, paragraph 1, on the freedom of commerce. Such an approach is not supported by the text of the 1955 Treaty, and seems to be based on assumptions that are factually wrong and do not correspond to the realities of trade in oil. Moreover, such an approach seems to detract from aspects of the Court’s jurisprudence and I have in mind both the Oscar Chinn case (Judgment, P.C.I.J. Series A/B, No. 63, p. 65) and the

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1996 Judgment (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 50.)

[p. 297 D.O. Elaraby] 2.2. The first premise is that the October 1987 attack on the Reshadat and Resalat complexes did not impede the flow of oil because the platforms were out of commission as a result of Iraqi attack. This conclusion completely disregards the fact that the 1955 Treaty provides for an obligation not to impede freedom of commerce and commercial activities between the territories of the two parties in general. Thus whether a particular platform was or was not producing oil at a certain moment is irrelevant. Iran’s territory was producing oil which reached the territory of the United States. A destruction of any single platform prejudices and impedes and restricts Iran’s ability to export oil which, as the Court recognized in 1996, forms a vital part of its economy and constitutes an important component of its foreign trade. The Court further noted that "it could reasonably be argued that, had the platforms not been attacked, some of the oil that they would have produced would have been included in the consignments processed in Western Europe so as to produce the petroleum products reaching the United States" (Judgment, para. 96). The Court in 1996 adopted a comprehensive, all– encompassing definition of the expression "freedom of commerce". The Court, by holding that any act which would impede that freedom is thereby prohibited, has made it clear that the Parties are under a legal obligation to protect the freedom of commerce and that impeding the freedom of commerce is a breach of the Treaty which engages the responsibility of that party. In the Oscar Chinn case, the expression, "freedom of commerce", was seen as contemplating not only the purchase and sale of goods but also "industry". In the 1996 Judgment the Court held that "it would be a natural interpretation of the word ‘commerce’ in Article X, paragraph 1, of the Treaty of 1955 that it includes commercial activities in general – and not merely the immediate act of purchase and sale, but also the ancillary activities integrally related to commerce" (Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 819, para. 49). The 1996 Judgment, which possesses the power of res judicata, cannot be reconciled with the 2003 findings on Article X, paragraph 1, in the Judgment.

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[pp. 313-314 S.O. Owada] 25. ... Commerce is defined as "mercantile transaction" (The Shorter Oxford Dictionary, 10th ed.). What is essential in the concept of "commerce" as its constituent element, especially in its context of "freedom of commerce and navigation" as used in the Treaty, is, I submit, the existence of this "transactional element" that links the two Parties under the Treaty. This to me is the critical element of "commerce", as the term is used in this Treaty, that distinguishes it from a mere economic activity which, even if it might envisage a possibility of export in a general sense, does not contemplate any concrete transaction in view. In fact, I submit that the term "freedom of commerce and navigation between the High Contracting Parties" as used in many of the FCN treaties concluded by the United States in the post–World War II period is meant to refer to this notion of unimpeded flow of mercantile transactions in goods and services between the territories of the Contracting Parties, as distinguished from a broader problem of the rights of the Contracting Parties to engage in various economic activities of a commercial character within the territories of each other – a problem dealt with in concrete detail by various provisions of the Treaty (e.g., Article II through Article IX of the 1955 Treaty).

26. It is true that the oil platforms which were the subject of United States attacks, were owned and operated for general commercial purposes by the National Iranian Oil Company as an integral part of a series of complex operations that included such economic activities as the extraction of oil from the continental shelf, its transportation to a storage place, and its processing from crude oil into a final product for export/consumption. In that sense, the oil platforms no doubt performed an important function in the chain of operations that consisted of a network of economic activities ranging from the oil production to its export/consumption.

27. This does not mean, however, that every single link in this chain of operations can be qualified as part of "commerce", and especially as an activity that falls within the concept of "freedom of commerce between the territories of the Contracting Parties" in the sense in which the term is used in Article X, paragraph 1, of the Treaty. In my view, there is a fine but clear distinction in this regard between "industrial activities" and "commercial activities" for the purpose of the Treaty, although the two activities may be linked with each other within the broad category of "economic activities".

28. In light of this reasoning and quite apart from the factual ground relied on by the Judgment that "there was at the time of [the attacks of 19 October 1987] no commerce between the territories of Iran and the United States in respect of oil produced by [the] platforms [in question] ... inasmuch as the

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platforms were under repair and inoperative" (Judgment, para. 98) and that "at the time of the attacks of 18 April 1988 ... all commerce in crude oil between the territories of Iran and the United States had been suspended by [the] Executive Order [12613 of the United States]" (Judgment, ibid.), I come to the conclusion that primordially on this legal ground the actions of the United States against the oil platforms in question did not amount to an infringement of "freedom of commerce" as stipulated in Article X, paragraph 1. The word "commerce" as employed in Article X, paragraph 1, while going beyond the immediate act of purchase and sale, should be understood to extend only to those activities which can be regarded as "the ancillary activities integrally related to commerce" (I.C.J. Reports 1996 (II), p. 819, para. 49) in the sense that they constitute essential ingredients of mercantile transactions carried out between Iran and the United States.

[pp. 336-338 S.O. Simma] 21. ... Paragraph 98 states that the two United States attacks cannot be said to have infringed upon Iran’s rights under Article X, paragraph 1, of the Treaty because - at the time of the United States attack of 19 October 1987 on the Reshadat platforms there was no commerce between the territories of Iran and the United States in respect of oil produced by those platforms and the Resalat platforms100, inasmuch as those platforms were under repair and inoperative; - at the time of the attacks of 18 April 1988 on the Salman and Nasr platforms, all direct commerce in oil between the territories of Iran and the United States had been suspended in pursuance of the United States embargo; consequently there was at that time no commerce "between the territories" of the parties within the meaning of the Treaty.

22. My disagreement with those two conclusions is as follows: as the Permanent Court has observed in the Oscar Chinn case101, freedom of trade consists in the right to engage in any commercial activity, such activity comprising not only the purchase and sale of goods, but also industry, and in particular the transport business. This observation was the basis for the Court’s 1996 Judgment on the United States Preliminary Objection to arrive at what it calls the "natural interpretation" according to which the word "commerce" in Article X, paragraph 1, includes commercial activities in general – not merely the immediate act of purchase and 100

Paragraph 47 of the Judgment clarifies that, while the United States attack was made solely on two platforms belonging to the Reshadat complex, it affected also the operation of the Resalat complex.

101

Judgment, 1934, P.C.I.J., Series A/B, No. 63, p. 65.

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sale, but also the ancillary activities integrally related to commerce102. In conformity with this finding, the present Judgment includes the oil platforms among the installations performing such ancillary activities.

23. What I cannot agree with is that those oil platforms that at the time of the 1987 attacks were under repair, could have lost the protection rendered by Article X, paragraph 1, of the 1955 Treaty by the fact of their thus being temporarily inoperative. First, according to Iran, the Reshadat platforms were at the time of the US attacks close to being recommissioned103: according to Iran, it was contemplated that production would resume several days before the United States embargo set in. But even if the Reshadat platforms had taken up production again at a later date, that is, during the period of the embargo, they would have participated in indirect commerce in oil (on which see infra), just like the Salman and Nasr platforms.

24. Concerning the time needed for the repair of the platforms, I see no reason to deny credibility to the Iranian claims as paragraph 93 of the Judgment chooses to do: Iraqi attacks on the Reshadat platforms had taken place way back in 1986 and I would not categorically exclude the possibility that the United States, resolved to "teach Iran a lesson", timed its attacks precisely so as to destroy the installations as imminently before they could resume their function as possible.

25. More importantly, however, I consider, first, that "freedom of commerce" within the meaning of Article X, paragraph 1, of the Treaty implies the coverage by that Treaty provision not only of actual, ongoing commerce but of commerce on a continuing basis. Secondly, with Iran, I read that freedom as embodying an undertaking by the Parties to refrain from any action, not authorized by general international law or expressly contemplated by the Treaty between them, which may be the source of impediments on the other Party related to international commerce104. Thus, according to this view, which I consider to be correct on this point, the key issue is not damage to commerce in practice but the violation of the freedom to engage in commerce, whether or not there actually was any commerce going on at the time of the violation.

102

Oil Platforms, Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 819, para. 49.

103

Cf. para. 92 of the Judgment.

104

Pellet, CR 2003/6, p. 28.

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26. To conclude from this interpretation of the Treaty–based "freedom of commerce" that one party to a treaty stipulating such freedom would be obligated to enhance the other party’s capabilities to bring about goods destined for such commerce would be absurd. But what certainly follows from it is that the parties are prohibited to prevent each other’s use of existing capabilities, particularly by destroying respective installations altogether. I see no other way to interpret the Court’s statement of 1996, according to which "any act which would impede that ‘freedom’ is thereby prohibited"105. Further, as a consequence of that - abstract, as it were - understanding of freedom of commerce followed here, such freedom is not founded on momentary reality, it implies a possibility for the future106. Thus the destruction of the Reshadat installations did impair the freedom of Iran to engage in commerce in oil also with the United States, irrespective of the fact that at the time of the attacks the platforms were out of order. Even if it had taken Iran longer to render the installations attacked in 1987 operational again, reducing them to ruins is to me as obvious a violation of Iran’s freedom of commerce as it could possibly be. Hence, for a violation of Article X, paragraph 1, to occur, no oil must have been flowing at the time of the United States attacks; it is sufficient that the attacks impeded the possibility of such flow.

[pp. 338-339 S.O. Simma] 28. … I find myself in disagreement with the view expressed in paragraph 98 of the Judgment that, since at the time of the attacks on the Salman and Nasr platforms in April 1988, commerce in oil between the territories of Iran and the United States had been suspended through the United States President’s Executive Order 12613, these platforms had lost protection under Article X, paragraph 1, of the 1955 Treaty as well. Thus, in the view of the Court, even though it recognizes that during the period of the United States embargo petroleum products were reaching the United States in considerable quantities that were derived in part from Iranian crude oil107, commerce in such products did not constitute "commerce between the territories of Iran and the United States", understood exclusively as direct commerce. Also, the Judgment apparently views the "directness" of commerce in oil and petroleum products as eliminated not by the fact that, having been mixed with oil from other destinations, refined or otherwise processed, for instance in Rotterdam, Iranian crude oil

105

Oil Platforms, Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 819, para. 50.

106

Pellet, CR 2003/6, p. 33, paras. 68 and 70; p. 34, para. 73.

107

Cf. para. 96 of the present Judgment and infra paragraph 30.

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could have lost its Iranian nationality, as it were, but rather by the existence in the context of indirect commerce of a succession of commercial transactions involving in addition to an Iranian seller and a United States buyer some intermediate participant(s) in a third country108.

29. I find this interpretation of Article X, paragraph 1, plainly wrong. It is too formalistic and due to render the inter–State "commerce" protected under the Treaty a prey to private manipulations. In order to assess the ambit of this protection correctly, I would submit that a sharp distinction ought to be drawn between the level of international commercial law, that is, the law and the contractual relationships governing transactions in oil between private parties on the one hand, and the level of public international, i.e., treaty law on the other: the 1955 Treaty intends to protect "commerce between the territories of the Parties" as a value, or as a good, belonging, as it were, to the States parties to it; it in no way focuses on the private transactions that make such commerce flow from Iran to the United States. Thus, what the Treaty protection of commerce aims at is the macro–economic aspect of oil trade. And in this regard, the situation was as follows: according to the information before the Court, Iran’s economy benefited from an increase in sales of crude oil to Western European markets during the period of the embargo, and this corresponded to increased spending by United States importers on petroleum products in those markets. Just as there was, in some sense, a flow of Iranian oil into the United States in the form of "mixed" crude oil or refined products, so there was also a corresponding flow of capital out of the United States and, ultimately, into Iran to pay for the products. In my view, this is all there is needed to represent "commerce between the territories" of the two Parties for the purposes of a commercial treaty of the kind exemplified by the 1955 Treaty. Trade in oil has to be viewed in light of the realities of that trade109. I would presume that even before the enactment of the embargo, indirect trade in oil (products), as such trade is understood by the Judgment, was taking place. Subsequent to the United States President’s Executive Order 12613, what happened was that all Iran–United States oil trade became indirect in that way.

[pp. 382-383 S.O. Rigaux] 23. In order for Article X, paragraph 1, to apply to the destruction of the three oil complexes of Reshadat–Resalat, Salman and Nasr, three conditions must be 108

Cf. ibid., paras. 96 ff. In the Court’s view “[t]his is not ‘commerce’ between Iran and the United States, but commerce between Iran and an intermediate purchaser; and ‘commerce’ between an intermediate seller and the United States (ibid., para. 97).

109

Crawford, CR 2003/5, pp. 3 ff.

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satisfied: the platforms must have been the site of commercial activity, freedom of commerce must have been prejudiced and that freedom must have been exercised, or been capable of being exercised, between the territories of the two High Contrting Parties. By their very nature, the three oil platform complexes were intended for the production, processing and transport of oil to a place where it could be “placed in commerce”. The fact that platforms are artificially erected on the continental shelf of a State for the pourpose of extracting oil resources lying in that State’s exclusive economic zone and that advanced technology is applied to produce crude oil with a view to its commercialization unquestionably places the resultant activities within the realm of the exercise of “freedom of commerce”. To this must be added the vulnerability and therefore fragility of the effective enjoyment of that freedom. The damage inflicted on just one part of facilities which are necessarily interconnected unavoidably breaks the chain of production and, consequently, the chain of commercialization. When, moreover, the destruction takes place during a war in which those same installations are under constant threat of attack by enemy forces, their repair requires particularly arduous efforts.

24. The second condition concerns the notion of freedom of commerce. In order for such a freedom to be prejudiced, it is not necessary for the actual or immediate conduct of commercial activity, in the present case the protected oil production activity, to be brought to a halt. It is no defence to argue that two of the oil complexes were temporarily out of commission as a result of the Iraqi attacks, since their repair work was in progress. Even in a country like Iran, which possesses abundant oil resources and numerous production centres, the disabling of even one part of the machinery of production prejudices freedom of commerce, that is to say, the ability to choose from production sites for purposes of commercialization. I cannot in particular subscribe to the following statement by the Court in paragraph 92 of the Judgment: “Injury to potential for future commerce is however, in the Court’s view, not necessarily to be identified with the injury to freedom of commerce, within the meaning of Article X, paragraph 1, of the 1955 Treaty.” Freedom of commerce implies not only freedom for Iran to choose where it will produce and sell its petroleum wealth, but also includes control over the future development of that commerce.

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25. The third and last question concerns the spatial or relational element of freedom of commerce: that freedom is protected in so far as it is exercised between the territories of the two High Contracting Parties. Having been built on the Iranian continental shelf, the oil platforms are part of Iranian territory. The same is true of Lavan Island, to which oil from the Salman complex is transported, and of Sirri Island, through which oil from the Nasr complex passes. But was there infringement of freedom of commerce between this territory and the territory of the United States? The response to this question is bound up with that just given to the preceding question. Throughout the war between Iran and Iraq, Iran never stopped supplying oil to the United States. The temporary disabling of the facilities of the three oil complexes prejudiced Iran’s freedom of commerce because it was restricted in its freedom to choose the centres of production from which oil was to be exported to the United States.

*

14. INTERNATIONAL ENVIRONMENTAL LAW

*

15. EXTRADITION

16. INTERNATIONAL CRIMINAL LAW *

16.1. General Questions

16.2. Universal Jurisdiction

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 23-26] 56. The Court will now address Belgium’s argument that immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect them where they are suspected of having committed war crimes or crimes against humanity. In support of this position, Belgium refers in its Counter–Memorial to various legal instruments creating international criminal tribunals, to examples from national legislation, and to the jurisprudence of national and international courts. ... 58. The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French

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25. The third and last question concerns the spatial or relational element of freedom of commerce: that freedom is protected in so far as it is exercised between the territories of the two High Contracting Parties. Having been built on the Iranian continental shelf, the oil platforms are part of Iranian territory. The same is true of Lavan Island, to which oil from the Salman complex is transported, and of Sirri Island, through which oil from the Nasr complex passes. But was there infringement of freedom of commerce between this territory and the territory of the United States? The response to this question is bound up with that just given to the preceding question. Throughout the war between Iran and Iraq, Iran never stopped supplying oil to the United States. The temporary disabling of the facilities of the three oil complexes prejudiced Iran’s freedom of commerce because it was restricted in its freedom to choose the centres of production from which oil was to be exported to the United States.

*

14. INTERNATIONAL ENVIRONMENTAL LAW

*

15. EXTRADITION

16. INTERNATIONAL CRIMINAL LAW *

16.1. General Questions

16.2. Universal Jurisdiction

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 23-26] 56. The Court will now address Belgium’s argument that immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect them where they are suspected of having committed war crimes or crimes against humanity. In support of this position, Belgium refers in its Counter–Memorial to various legal instruments creating international criminal tribunals, to examples from national legislation, and to the jurisprudence of national and international courts. ... 58. The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French

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Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter (see Charter of the International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27). It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts. Finally, none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the International Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reached above. In view of the foregoing, the Court accordingly cannot accept Belgium’s argument in this regard.

59. It should further be noted that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international

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law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.

60. The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.

61. Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant

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to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person".

[pp. 42-45 S.O. Guillaume] 12. ... international law knows only one true case of universal jurisdiction: piracy. Further, a number of international conventions provide for the establishment of subsidiary universal jurisdiction for purposes of the trial of certain offenders arrested on national territory and not extradited to a foreign country. Universal jurisdiction in absentia as applied in the present case is unknown to international law.

13. Having found that neither treaty law nor international customary law provide a State with the possibility of conferring universal jurisdiction on its courts where the author of the offence is not present on its territory, Belgium contends lastly that, even in the absence of any treaty or custom to this effect, it enjoyed total freedom of action. To this end it cites from the Judgment of the Permanent Court of International Justice in the "Lotus" case: "Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules ..."110 Hence, so Belgium claimed, in the absence of any prohibitive rule it was entitled to confer upon itself a universal jurisdiction in absentia.

14. This argument is hardly persuasive. Indeed the Permanent Court itself, having laid down the general principle cited by Belgium, then asked itself "whether the foregoing considerations really apply as regards criminal jurisdiction"111. It held that either this might be the case, or alternatively, that: "the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly provided, would, ipso facto,

110

“Lotus”, Judgment No. 9, 1927, P.C.I.J., Series A, No. 10, p. 19.

111

Ibid., p. 20.

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prevent States from extending the criminal jurisdiction of their courts beyond their frontiers"112. In the particular case before it, the Permanent Court took the view that it was unnecessary to decide the point. Given that the case involved the collision of a French vessel with a Turkish vessel, the Court confined itself to noting that the effects of the offence in question had made themselves felt on Turkish territory, and that consequently a criminal prosecution might "be justified from the point of view of this so–called territorial principle"113

15. The absence of a decision by the Permanent Court on the point was understandable in 1927, given the sparse treaty law at that time. The situation is different today, it seems to me totally different. The adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle. International criminal law has itself undergone considerable development and constitutes today an impressive legal corpus. It recognizes in many situations the possibility, or indeed the obligation, for a State other than that on whose territory the offence was committed to confer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory. International criminal courts have been created. But at no time has it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total judicial chaos. It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an ill– defined "international community". Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backward.

16. States primarily exercise their criminal jurisdiction on their own territory. In classic international law, they normally have jurisdiction in respect of an offence committed abroad only if the offender, or at least the victim, is of their nationality, or if the crime threatens their internal or external security. Additionally, they may exercise jurisdiction in cases of piracy and in the situations of subsidiary universal jurisdiction provided for by various conventions if

112

Ibid., p. 20.

113

Ibid., p. 23.

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the offender is present on their territory. But apart from these cases, international law does not accept universal jurisdiction; still less does it accept universal jurisdiction in absentia.

17. Passing now to the specific case before us, I would observe that Mr. Yerodia Ndombasi is accused of two types of offence, namely serious war crimes, punishable under the Geneva Conventions, and crimes against humanity. As regards the first count, I note that, under Article 49 of the First Geneva Convention, Article 50 of the Second Convention, Article 129 of the Third Convention and Article 146 of the Fourth Convention: "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, [certain] grave breaches [of the Convention], and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned ..." This provision requires each contracting party to search out alleged offenders and bring them before its courts (unless it prefers to hand them over to another party). However, the Geneva Conventions do not contain any provision on jurisdiction comparable, for example, to Article 4 of The Hague Convention already cited. What is more, they do not create any obligation of search, arrest or prosecution in cases where the offenders are not present on the territory of the State concerned. They accordingly cannot in any event found a universal jurisdiction in absentia. Thus Belgium could not confer such jurisdiction on its courts on the basis of these Conventions, and the proceedings instituted in this case against Mr. Yerodia Ndombasi on account of war crimes were brought by a judge who was not competent to do so in the eyes of international law. The same applies as regards the proceedings for crimes against humanity. No international convention, apart from the Rome Convention of 17 July 1998, which is not in force, deals with the prosecution of such crimes. Thus the Belgian judge, no doubt aware of this problem, felt himself entitled in his warrant to cite the Convention against Torture of 10 December 1984. But it is not permissible in criminal proceedings to reason by analogy, as the Permanent Court of International Justice indeed pointed out in its Advisory Opinion of 4 December 1935 concerning the Consistency of Certain Danzig Legislative Decrees with the Constitution of the

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Free City114. There too, proceedings were instituted by a judge not competent in the eyes of international law. If the Court had addressed these questions, it seems to me that it ought therefore to have found that the Belgian judge was wrong in holding himself competent to prosecute Mr. Yerodia Ndombasi by relying on a universal jurisdiction incompatible with international law.

[p. 58 Decl. Ranjeva] 11. In sum, the issue of universal jurisdiction in absentia arises from the problem created by the possibility of extraterritorial criminal jurisdiction in the absence of any connection between the State claiming such jurisdiction and the territory in which the alleged offences took place – of any effective authority of that State over the suspected offenders. This problem stems from the nature of an instrument of criminal process : it is not a mere abstraction; it is enforceable, and as such, requires a minimum material basis under international law. It follows that an explicit prohibition on the exercise, as construed by Belgium, of universal jurisdiction does not represent a sufficient basis.

[pp. 79-80 J.S.O. Higgins, Kooijmans, Buergenthal] 53. This brings us once more to the particular point that divides the Parties in this case: is it a precondition of the assertion of universal jurisdiction that the accused be within the territory?

54. Considerable confusion surrounds this topic, not helped by the fact that legislators, courts and writers alike frequently fail to specify the precise temporal moment at which any such requirement is said to be in play. Is the presence of the accused within the jurisdiction said to be required at the time the offence was committed? At the time the arrest warrant is issued? Or at the time of the trial itself? An examination of national legislation, cases and writings reveals a wide variety of temporal linkages to the assertion of jurisdiction. This incoherent practice cannot be said to evidence a precondition to any exercise of universal criminal jurisdiction. The fact that in the past the only clear example of an agreed exercise of universal jurisdiction was in respect of piracy, outside of any territorial jurisdiction, is not determinative. The only prohibitive rule (repeated by the Permanent Court in the "Lotus" case) is that criminal jurisdiction should not be exercised, without permission, within the territory of another State. The Belgian arrest warrant envisaged the arrest of Mr. Yerodia in Belgium, or

114

Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion, 1935, P.C.I.J., Series A/B, No. 65, pp. 41 et seq.

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the possibility of his arrest in third States at the discretion of the States concerned. This would in principle seem to violate no existing prohibiting rule of international law.

55. In criminal law, in particular, it is said that evidence–gathering requires territorial presence. But this point goes to any extraterritoriality, including those that are well established and not just to universal jurisdiction.

56. Some jurisdictions provide for trial in absentia; others do not. If it is said that a person must be within the jurisdiction at the time of the trial itself, that may be a prudent guarantee for the right of fair trial but has little to do with bases of jurisdiction recognized under international law.

57. On what basis is it claimed, alternatively, that an arrest warrant may not be issued for non– nationals in respect of offences occurring outside the jurisdiction? The textual provisions themselves of the 1949 Geneva Convention and the First Additional Protocol give no support to this view. The great treaties on aerial offences, hijacking, narcotics and torture are built around the concept of aut dedere aut prosequi. Definitionally, this envisages presence on the territory. There cannot be an obligation to extradite someone you choose not to try unless that person is within your reach. National legislation, enacted to give effect to these treaties, quite naturally also may make mention of the necessity of the presence of the accused. These sensible realities are critical for the obligatory exercise of aut dedere aut prosequi jurisdiction, but cannot be interpreted a contrario so as to exclude a voluntary exercise of a universal jurisdiction.

58. If the underlying purpose of designating certain acts as international crimes is to authorize a wide jurisdiction to be asserted over persons committing them, there is no rule of international law (and certainly not the aut dedere principle) which makes illegal co–operative overt acts designed to secure their presence within a State wishing to exercise jurisdiction.

[pp. 80-81 J.S.O. Higgins, Kooijmans, Buergenthal] 59. If, as we believe to be the case, a State may choose to exercise a universal criminal jurisdiction in absentia, it must also ensure that certain safeguards are in place. They are absolutely essential to prevent abuse and to ensure that the rejection of impunity does not jeopardize stable relations between States.

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No exercise of criminal jurisdiction may occur which fails to respect the inviolability or infringes the immunities of the person concerned. We return below to certain aspects of this facet, but will say at this juncture that commencing an investigation on the basis of which an arrest warrant may later be issued does not of itself violate those principles. The function served by the international law of immunities does not require that States fail to keep themselves informed. A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned. The Court makes reference to these elements in the context of this case at paragraph 16 of its Judgment. Further, such charges may only be laid by a prosecutor or juge d’instruction who acts in full independence, without links to or control by the government of that State. Moreover, the desired equilibrium between the battle against impunity and the promotion of good inter–State relations will only be maintained if there are some special circumstances that do require the exercise of an international criminal jurisdiction and if this has been brought to the attention of the prosecutor or juge d’instruction. For example, persons related to the victims of the case will have requested the commencement of legal proceedings.

[pp. 81-83 J.S.O. Higgins, Kooijmans, Buergenthal] 60. It is equally necessary that universal criminal jurisdiction be exercised only over those crimes regarded as the most heinous by the international community.

61. Piracy is the classical example. This jurisdiction was, of course, exercised on the high seas and not as an enforcement jurisdiction within the territory of a non–agreeing State. But this historical fact does not mean that universal jurisdiction only exists with regard to crimes committed on the high seas or in other places outside national territorial jurisdiction. Of decisive importance is that this jurisdiction was regarded as lawful because the international community regarded piracy as damaging to the interests of all. War crimes and crimes against humanity are no less harmful to the interests of all because they do not usually occur on the high seas. War crimes (already since 1949 perhaps a treaty–based provision for universal jurisdiction) may be added to the list. The specification of their content is largely based upon the 1949 Conventions and those parts of the 1977 Additional Protocols that reflect general international law. Recent years have also seen the phenomenon of an alignment of national

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jurisdictional legislation on war crimes, specifying those crimes under the statutes of the ICTY, ICTR and the intended ICC.

62. The substantive content of the concept of crimes against humanity, and its status as crimes warranting the exercise of universal jurisdiction, is undergoing change. Article 6 (c) of the Charter of the International Military Tribunal of 8 August, 1945, envisaged them as a category linked with those crimes over which the Tribunal had jurisdiction (war crimes, crimes against the peace). In 1950 the International Law Commission defined them as murder, extermination, enslavement, deportation or other inhuman acts perpetrated on the citizen population, or persecutions on political, racial or religious grounds if in exercise of, or connection with, any crime against peace or a war crime (YILC 1950, Principle VI (c), pp. 374–377). Later definitions of crimes against humanity both widened the subject–matter, to include such offences as torture and rape, and de–coupled the link to other earlier established crimes. Crimes against humanity are now regarded as a distinct category. Thus the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission at its 48th session, provides that crimes against humanity "means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or any organization or group: (a)

Murder;

(b)

Extermination;

(c)

Torture;

(d)

Enslavement;

(e)

Persecution on political, racial, religious or ethnic grounds;

(f)

Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population;

(g)

Arbitrary deportation or forcible transfer of population;

(h)

Arbitrary imprisonment;

(i)

Forced disappearance of persons;

(j)

Rape, enforced prostitution and other forms of sexual abuse;

(k)

Other inhumane acts which severely damage physical or mental integrity, health

(l)

or human dignity, such as mutilation and severe bodily harm".

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63. The Belgian legislation of 1999 asserts a universal jurisdiction over acts broadly defined as "grave breaches of international humanitarian law", and the list is a compendium of war crimes and the Draft Codes of Offences listing of crimes against humanity, with genocide being added. Genocide is also included as a listed "crime against humanity" in the 1968 Convention on the Non–Applicability of Statutes of Limitation to War Crimes and Crimes against Humanity, as well as being included in the ICTY, ICTR and ICC Statutes.

64. The arrest warrant issued against Mr. Yerodia accuses him both of war crimes and of crimes against humanity. As regards the latter, charges of incitement to racial hatred, which are said to have led to murders and lynchings, were specified. Fitting of this charge within the generally understood substantive context of crimes against humanity is not without its problems. "Racial hatred" would need to be assimilated to "persecution on racial grounds", or, on the particular facts, to mass murder and extermination. Incitement to perform any of these acts is not in terms listed in the usual definitions of crimes against humanity, nor is it explicitly mentioned in the Statutes of the ICTY or the ICTR, nor in the Rome Statute for the ICC. However, Article 7 (l) of the ICTY and Article 6 (l) of the ICTR do stipulate that "any person who planned, instigated, ordered, committed or otherwise aided or abetted in the planning, preparation or execution of a crime referred to [in the relevant articles: crimes against humanity being among them] shall be individually responsible for the crime". In the Akayesu Judgment (96–4–T) a Chamber of the ICTR has held that liability for a crime against humanity includes liability through incitement to commit the crime concerned (paras. 481–482). The matter is dealt with in a comparable way in Article 25 (3) of the Rome Statute.

65. It would seem (without in any way pronouncing upon whether Mr. Yerodia did or did not perform the acts with which he is charged in the warrant) that the acts alleged do fall within the concept of "crimes against humanity" and would be within that small category in respect of which an exercise of universal jurisdiction is not precluded under international law.

[pp. 91-92 S.O. Rezek] 4. By ruling first on the jurisdictional issue, the Court would have had the opportunity to point out that domestic criminal jurisdiction based solely on the principle of universal jurisdiction is necessarily subsidiary in nature and that there are good reasons for

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that. First, it is accepted that no forum is as qualified as that of the locus delicti to see a criminal trial through to its conclusion in the proper manner, if for no other reasons than that the evidence lies closer to hand and that that forum has greater knowledge of the accused and the victims, as well as a clearer appreciation of the full circumstances surrounding the offence. It is for political rather than practical reasons that a number of domestic systems rank, immediately after the principle of territoriality, a basis of criminal jurisdiction of a different kind, one which applies irrespective of the locus delicti: the principle of the defence of certain legal interests to which the State attaches particular value: the life and physical integrity of the sovereign, the national heritage, good governance.

5. With the exception of these two basic principles, complementarity is becoming the rule: in most countries, criminal proceedings are possible on the basis of the principles of active or passive nationality where crimes have been committed abroad by or against nationals of the forum State, but on condition that those crimes have not been tried elsewhere, in a State where criminal jurisdiction would more naturally lie, and provided that the accused is present on the territory of the forum State, of which either he himself or his victims are nationals.

6. In no way does international law as it now stands allow for activist intervention, whereby a State seeks out on another State’s territory, by means of an extradition request or an international arrest warrant, an individual accused of crimes under public international law but having no factual connection with the forum State. It required considerable presumption to suggest that Belgium was « obliged » to initiate criminal proceedings in the present case. Something which is not permitted cannot, a foriori, be required. Even disregarding the question of the accused’s immunity, the Respondent has been unable to point to a single other State which has in similar circumstances gone ahead with a public prosecution. No « nascent customary law » derives from the isolated action of one State; there is no embryonic customary rule in the making, notwithstanding that the Court, in addressing the issue of jurisdiction, acceded to the Respondent’s request not to impose any restraint on the formative process of the law.

[pp. 93-94 S.O. Rezek] 9. … If the application of the principle of universal jurisdiction does not presuppose that the accused be present on the territory of the forum State, co-ordination becomes totally impossible, leading to the collapse of the international system of co-operation

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for the prosecution of crime115. It is important that the domestic treatment of issues of this kind, and hence the conduct of the authorities of each State, should accord with the notion of a decentralized international community, founded on the principle of the equality of its members and necessarily requiring the co-ordination of their efforts. Any policy adopted in the name of human rights but not in keeping with that discipline threatens to harm rather than serve that cause.

10. In my view, if the Court had first considered the question of jurisdiction, it would have been relieved of any need to rule on the question of immunity. I do in any event adhere to the conclusions of the majority of my colleagues on this point. I find that under the facts and circumstances of the present case the Belgian domestic court lacks jurisdiction to conduct criminal proceedings, in the absence of any basis of jurisdiction other than the principle of universal jurisdiction and failing, in support of that principle, the presence on Belgian territory of the accused, whom it would be unlawful to force to appear. But I believe that, even on the assumption that the Belgian judicial authorities did have jurisdiction, the immunity enjoyed by the Congo’s Minister for Foreign Affairs would have barred both the initiation of criminal proceedings and the circulation of the international arrest warrant by the judge, with support from the Belgian Government.

[pp. 170-172 D.O. Van den Wyngaert] 54. There is no rule of conventional international law to the effect that universal jurisdiction in absentia is prohibited. The most important legal basis, in the case of universal jurisdiction for war crimes is Article 146 of the IVth Geneva Convention of 1949116, which lays down the principle aut dedere aut judicare117. A textual interpretation of this Article does not logically presuppose the presence of the offender, as the 115

As regards the current status of the principle of universal jurisdiction, note that the States which negotiated the Rome Treaty avoided extending the principle to the jurisdiction of the future International Criminal Court.

116

Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 287. See also Art. 49 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 31; Art. 50 Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 85; Art. 129 Convention relative to the Treatment of Prisoners of War, Geneva, 12 Aug. 1949, UNTS, Vol. 75, p. 135; Art. 85 (1) Protocol Additional (I) to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977, Official Records of the General Assembly, doc. A/32/144, 15 Aug. 1977.

117

See further infra, para. 62.

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Congo tries to show. The Congo’s reasoning in this respect is interesting from a doctrinal point of view, but does not logically follow from the text. For war crimes, the 1949 Geneva Conventions, which are almost universally ratified and could be considered to encompass more than mere treaty obligations due to this very wide acceptance, do not require the presence of the suspect. Reading into Article 146 of the IVth Geneva Convention a limitation on a State’s right to exercise universal jurisdiction would fly in the face of a teleological interpretation of the Geneva Conventions. The purpose of these Conventions, obviously, is not to restrict the jurisdiction of States for crimes under international law.

55. There is no customary international law to this effect either. The Congo submits there is a State practice, evidencing an opinio juris asserting that universal jurisdiction, per se, requires the presence of the offender on the territory of the prosecuting State. Many national systems giving effect to the obligation aut dedere aut judicare and/or the Rome Statute for an International Criminal Court indeed require the presence of the offender. This appears from legislation118 and from a number of national decisions including the Danish Saric case119, the French Javor case120 and the German Jorgic case121. However, there are also examples of national systems that do not require the presence of the offender on the territory of the prosecuting State122. Governments and national courts in the same State may hold different

118

See, e.g., the Swiss Penal Code, Art. 6 bis, 1; the French Penal Code, Art. 689–1; the Canadian Crimes against Humanity and War Crimes Act (2000), Art. 8.

119

Public Prosecutor v. T., Supreme Court (Hojesteret), Judgment, 15 Aug. 1995, Ugeskrift for Retsvaesen, 1995, p. 838, reported in Yearbook of International Humanitarian Law, 1998, p. 431 and in R. Maison, “Les premiers cas d’application des dispositions pénales des Conventions de Genève: commentaire des affaires danoise et française”, EJIL 1995, p. 260.

120

Cour de cassation (fr.), 26 Mar. 1996, Bull. Crim., 1996, pp. 379–382.

121

Bundesgerichtshof 30 Apr. 1999, 3 StR 215/98, NStZ 1999, p. 396. See also the critical note (Anmerkung) by Ambos, ibid., pp. 405–406, who doesn’t share the view of the judges that a “legitimizing link” is required to allow Germany to exercise its jurisdiction over crimes perpetrated outside its territory by foreigners against foreigners, even if these amount to serious crimes under international law (in casu genocide). In a recent judgment concerning the application of the Geneva Conventions, the Court, however, decided that such a link was not required, since German jurisdiction was grounded on a binding norm of international law instituting a duty to prosecute, so there could hardly be a violation of the principle of non– intervention (Bundesgerichtshof, 21 Feb. 2001, 3 StR 372/00, retrievable on http://www.hrr– strafrecht.de).

122

See, for example, the prosecutions instituted in Spain on the basis of Art. 23.4 of the Ley Orgánica del Poder Judicial (Law 6/1985 of 1 July 1985 on the Judicial Power) against Senator Pinochet and other South–American suspects whose extradition was requested. In New Zealand, proceedings may be brought for international “core crimes” regardless of whether or not the person accused was in New Zealand at the time a decision was made to

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opinions on the same question, which makes it even more difficult to identify the opinio juris in that State123. And even where national law requires the presence of the offender, this is not necessarily the expression of an opinio juris to the effect that this is a requirement under international law. National decisions should be read with much caution. In the Bouterse case, for example, the Dutch Supreme Court did not state that the requirement of the presence of the suspect was a requirement under international law, but only under domestic law. It found that, under Dutch law, there was no such jurisdiction to prosecute Mr. Bouterse but did not say that exercising such jurisdiction would be contrary to international law. In fact, the Supreme Court did not follow the Advocate General’s submission on this point 124. Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003

[pp. 110-111] 36. Whereas the Court will now, as a second question, consider the existence of a risk of irreparable prejudice in relation to the claim of the Congo that the unilateral assumption by a State of universal jurisdiction in criminal matters constitutes a violation of a principle of international law; whereas in this respect the question before the Court is whether the proceedings before the Tribunal de grande instance of Meaux involve a threat of irreparable prejudice to the rights invoked by the Congo justifying, as a matter of urgency, the indication of provisional measures; charge the person with an offence (Sec. 8, (1) (c) (iii) of the International Crimes and International Criminal Court Act 2000). 123

The German Government very recently reached agreement on a text for an “International Crimes Code” (Völkerstrafgesetzbuch) (see Bundesministerium der Justiz, Mitteilung für die Presse 02/02, Berlin, 16 Jan. 2002). The new Code would allow German law enforcement agencies to prosecute cases without any link to Germany and without the presence of the offender on the national territory. However, if there is no link to Germany, the law enforcement agencies have discretion to defer prosecution in such a case when an International Court or the Courts of a State basing its jurisdiction on territoriality or personality were in fact prosecuting the suspect (see: Bundesministerium der Justiz, Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches, pp. 19 and 89, to be consulted on the Internet: http://www.bmj.bund.de/images/11222.pdf).

124

The Court of Appeal of Amsterdam had, in its judgment of 20 Nov. 2000, decided, inter alia, that Mr. Bouterse could be prosecuted in absentia on charges of torture (facts committed in Suriname in 1982). This decision was reversed by the Dutch Supreme Court on 18 Sep. 2001, inter alia on the point of the exercise of universal jurisdiction in absentia. The submissions of the Dutch Advocate General are attached to the judgment of the Supreme Court, loc. cit., paras. 113–137 and especially para. 138.

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37. Whereas, as regards President Sassou Nguesso, the request for a written deposition made by the investigating judge on the basis of Article 656 of the French Code of Criminal Procedure has not been transmitted to the person concerned by the French Ministry of Foreign Affairs (see paragraph 31 above); whereas, as regards General Oba and General Adoua, they have not been the subject of any procedural measures by the investigating judge; whereas no measures of this nature are threatened against these three persons; whereas therefore there is no urgent need for provisional measures to preserve the rights of the Congo in that respect;

38. Whereas as regards General Dabira, it is acknowledged by France that the criminal proceedings instituted before the Tribunal de grande instance of Meaux have had an impact upon his own legal position, inasmuch as he possesses a residence in France, and was present in France and heard as a témoin assisté, and in particular because, having returned to the Congo, he declined to respond to a summons from the investigating judge, who thereupon issued a mandat d’amener against him; whereas however the practical effect of a provisional measure of the kind requested would be to enable General Dabira to enter France without fear of any legal consequences; whereas the Congo has not demonstrated the likelihood or even the possibility of any irreparable prejudice to the rights it claims resulting from the procedural measures taken in relation to General Dabira;

17. DEPENDENT TERRITORIES

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[pp. 404-407] 204. Nigeria has contended that the very title of the 1884 Treaty and the reference in Article I to the undertaking of "protection", shows that Britain had no entitlement to do more than protect, and in particular had no entitlement to cede the territory concerned to third States: "nemo dat quod non habet".

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37. Whereas, as regards President Sassou Nguesso, the request for a written deposition made by the investigating judge on the basis of Article 656 of the French Code of Criminal Procedure has not been transmitted to the person concerned by the French Ministry of Foreign Affairs (see paragraph 31 above); whereas, as regards General Oba and General Adoua, they have not been the subject of any procedural measures by the investigating judge; whereas no measures of this nature are threatened against these three persons; whereas therefore there is no urgent need for provisional measures to preserve the rights of the Congo in that respect;

38. Whereas as regards General Dabira, it is acknowledged by France that the criminal proceedings instituted before the Tribunal de grande instance of Meaux have had an impact upon his own legal position, inasmuch as he possesses a residence in France, and was present in France and heard as a témoin assisté, and in particular because, having returned to the Congo, he declined to respond to a summons from the investigating judge, who thereupon issued a mandat d’amener against him; whereas however the practical effect of a provisional measure of the kind requested would be to enable General Dabira to enter France without fear of any legal consequences; whereas the Congo has not demonstrated the likelihood or even the possibility of any irreparable prejudice to the rights it claims resulting from the procedural measures taken in relation to General Dabira;

17. DEPENDENT TERRITORIES

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[pp. 404-407] 204. Nigeria has contended that the very title of the 1884 Treaty and the reference in Article I to the undertaking of "protection", shows that Britain had no entitlement to do more than protect, and in particular had no entitlement to cede the territory concerned to third States: "nemo dat quod non habet".

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205. 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. 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." (RIIA, Vol. II, pp. 858– 859.) 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.

206. 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. It was precisely a reflection

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of those differences that within Nigeria there was the Colony of Lagos and the Niger Coast Protectorate, later to become the Protectorate of Southern Nigeria.

207. In the view of the Court many factors point to the 1884 Treaty signed with the Kings and Chiefs of Old Calabar as not establishing an international protectorate. It was one of a multitude in a region where the local Rulers were not regarded as States. Indeed, apart from the parallel declarations of various lesser Chiefs agreeing to be bound by the 1884 Treaty, there is not even convincing evidence of a central federal power. There appears in Old Calabar rather to have been individual townships, headed by Chiefs, who regarded themselves as owing a general allegiance to more important Kings and Chiefs. Further, from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them. Consul Johnston reported in 1888 that "the country between the boundary of Lagos and the German boundary of Cameroons" was "administered by Her Majesty’s Consular Officers, under various Orders in Council". The fact that a delegation was sent to London by the Kings and Chiefs of Old Calabar in 1913 to discuss matters of land tenure cannot be considered as implying international personality. It simply confirms the British administration by indirect rule. Nigeria itself has been unable to point to any role, in matters relevant to the present case, played by the Kings and Chiefs of Old Calabar after the conclusion of the 1884 Treaty. In responding to a question of a Member of the Court Nigeria stated "It is not possible to say with clarity and certainty what happened to the international legal personality of the Kings and Chiefs of Old Calabar after 1885." 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. In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) the Court was presented with substantial documentation of this character, in large part being old British State papers. In the present case the Court was informed that "Nigeria can neither say that no such meetings ever took place, or that they did take place ... the records which would enable the question to be answered probably no longer exist ..."

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208. As to when the Kings and Chiefs ceased to exist as a separate entity, Nigeria told the Court it "is not a question susceptible of a clear–cut answer". The Court notes in this regard that in 1885 Great Britain had established by proclamation a "British Protectorate of the Niger Districts" (which subsequently changed names a number of times), incorporating in a single entity the various territories covered by the treaties of protection entered into in the region since July 1884. The Court further notes that there is no reference to Old Calabar in any of the various British Orders in Council, of whatever date, which list protectorates and protected States. The same is true of the British Protected Persons Order of 1934, the Schedule to which refers to "Nigerian Protectorate and Cameroons under British Mandate". Nor is there any reference to Old Calabar in the Second Schedule to the British Protectorates, Protected States and Protected Persons Order in Council, 1949, though in the First Schedule there is a reference to the "Nigerian Protectorate". Moreover, the Court has been presented with no evidence of any protest in 1913 by the Kings and Chiefs of Old Calabar; nor of any action by them to pass territory to Nigeria as it emerged to independence in 1960.

209. The Court thus concludes that, under the law at the time, Great Britain was in a position in 1913 to determine its boundaries with Germany in respect of Nigeria, including in the southern section. [p. 409] 212. The Court notes that after the First World War Germany renounced its colonial possessions. Under the Versailles Treaty the German possessions of Cameroon were divided between Great Britain and France. In 1922 Great Britain accepted the mandate of the League of Nations for "that part [of the former German colony] of the Cameroons which lay to the west of the line laid down in the [Milner– Simon] Declaration signed on the 10th July, 1919". Bakassi was necessarily comprised within the mandate. Great Britain had no powers unilaterally to alter the boundary nor did it make any request to the League of Nations for any such alteration. The League Council was notified, and did not object to, the British suggestion that it administer

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Southern Cameroon together with the eastern region of the Protectorate of Nigeria. Thus the British Order in Council of 26 June 1923 providing for the Administration of the Mandated Territory of the British Cameroons stipulated that British Cameroons lying southwards of the line described in the Schedule would be administered "as if it formed part of" the southern provinces of the Protectorate of Nigeria. The Court observes that the terminology used in the Order in Council preserved the distinctive status of the mandated territory, while allowing the convenience of a common administration. The Nigerian thesis must therefore be rejected. 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. The Court is unable to accept Nigeria’s contention that until its independence in 1961, and notwithstanding the Anglo–German Agreement of 11 March 1913, the Bakassi Peninsula had remained under the sovereignty of the Kings and Chiefs of Old Calabar. Neither the League of Nations nor the United Nations considered that to be the position.

[pp. 469-471 S.O. Ranjeva] 2. My purpose in this opinion is to consider the interpretation which in my view should be given to the notion of « the law at the time » (Judgment, para. 209). To understand the scope of this notion, reference should be made to the Arbitral Award of the President of the French Republic between Great Britain and Portugal concerning Delagoa Bay of 24 July 1875 (H. La Fontaine, (H. La Fontaine, Pasicrisie internationale 1794-1900 : histoire documentaire des arbitrages internationaux), to the text of Article 38 of the Statute of the Court and to the silence of the Judgment regarding the characterization of the treaties concluded by the Chiefs of Old Calabar with the representative of Old Calabar. The criterion of « civilized nation » represented the qualifying condition in order to be accorded the juridical status of international subject. Without formal recognition of

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sovereignty on the part of the civilized nations, traditional indigenous societies, African societies in particular, did not have the status of subjects of international law, even where their territory was not necessartily terra nullius, as was made clear in the Advisory Opinion on the Western Sahara case (I.C.J. Reports 1975, p. 12). But does the refusal to accord any inrernational status to such treaties justify reliance on the simple generic concept of « the law at the time » when characaterizing in strictly legal terms territorial situation obtaining during the colonial period ? The problem is whether, in this case, the rules of intertemporal law are suffcient to explain and to justify the disappearance from the inter national scene of this ancient entitiy, the Chiefs of Old Calabar.

3. Literal application of the principles of international law leads to a surprising conclusion, which could be expressed in the following maxim: « in treaty relations with indigenous chiefs, pacta non servanda sunt». Thus it is difficult, without recourse to legal artifice, to justify the idea that a protected entity could consent to being dispossessed of its legal personality or of its territory. In a civil contract, any unilateral dissolution of an entity recognized under the terms of the contract is regarded as a breach of the contractual obligations and sanctions must follow. Can the absence of the conditions required for a valid international treaty render such surprising consequences acceptable? The inequality and denial of rights inherent in colonial practice in relation to indigenous peoples and to colonies is currently recognized as an elementary truth; there is a resultant duty to memorialize these injustices and at the same time to acknowledge an historical fact. The destruction of international personality is procured by an act of force: through debellatio or under an agreement between equals. But to contend that an international pesonality has disappeared by consent is verging on fraud. Application of the rules of intertemporal law cannot justify conclusions so contrary to fundamental norms, not even on the basis of the special nature of relationaships with indigenous chiefs. The International Court of Justice should be reluctant to accept that, in the name of intertemporal law, the maxim pacta sunt servanda may be circumvented. The Court’s decision must not be interpreted as encouraging any impugnment of the principle of the sanctity of contracts. If we analyse the relationship between the various norms and principles of international law, it is clear that the maxim pacta servanda sunt cannot be treated on the same basis as the rules of intertemporal law, which serve merely as auxiliary means of interpretation of the primary rule, pacta servanda sunt. Any interpretation seeking to impugn that fundamental rules is misconceived. The main purpose of the rules of intertemporal law is

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to strengthen legal security in international relations. The binding nature of international treaties derives not from the mechanical or formal application of a principle but from the nature of commitments freely undertaken, expressing the consent of States to be bound. Only the impact of norms of jus cogens can justify any impugnment of the consensus principle. Thus, the legal framework provides a tool for analysing the consent and intentions of States but cannot replace those intentions.

4. In the present case, the application of the rules of intertemporal law raises the problem of the Judgment’s acceptance of the conduct of the protecting Power, which proceeded to liquidate the entity of Old Calabar. A distinction must be drawn between justification and acceptance of a legal situation. Thus the situations which the law addresses may have originated either in a legal instrument, that is to say a manifestation of will intended to produce legal effects, or in a legal fact, that is to say an occurrence, a situation having taken place irrespective of any consent by the States concerned and producing effects in law. It follows that the instruments adopted by the colonial Power constituted legal facts, around which evolved and developed régimes governing tertorial rights, as well as the personal rights of the populations concerned. This analysis is confirmed by the decision in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 554). The Chamber directly applied French colonial law not qua colonial law but as the normative reference source applicable, without passing any judgment thereon or seeking to legitimize colonial law by reliance on the rules of intertemporal law.

5. Criticism of the «unilateralism» of the colonial Powers in ultimately treating agreements concluded with indigenous rulers as «scraps of paper» is nothing new. I would cite here the thesis of Mr. Nazif, submitted to the University of Batavia in 1928, on the disappearance of the Kingdom of Madagascar in international law (De Val van het Rijk Merina – La chute du Royaume de Mérina). I would also recall the position taken by the Malgasy plenipotentiaries in 1895 when they confronted France with the argument that the independence of the Kingdom was an issue distinct from its ability to repay its loan, the official pretext for the despatch of the expeditionary force. Conversely, the tabula rasa principle has been invoked in order to refuse a right of State succession to treaties concluded by the monarchy. This precedent was recalled at the time of the annexation of Czechoslovakia by the Third Reich.

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6. For these reasons, it would have been preferable to speak of international law when referring to the law governing relations between the European Powers or with sovereigns recognized by the Eurpean Powers, and of colonial law or acts, as appropriate, when addressing the relationship between the European Powers and indigenous chiefs. Such distinction or classification permits a better understanding of the legal framework of colonization.

[pp. 489-490 Decl. Rezek] It is rare to find in classic international law propositions as flimsy – and as inadmissibly so in moral terms – as those which would have it that agreements entered into the past between colonial Powers and indigenous communities – organized communities which had been masters of their territories for centuries and were subject to a recognoized authority – are not treaties, because « native chiefs and tribes are neither States nor International Organizations; and thus possess no treaty-making capacity » ( The Law of Treaties, 1961, p. 53). While expressing in these terms the doctrine prevailing in Europe in his time, Arnold McNair nevertheless pointed out that the matter had been understood differently in the United States, where indigenous communities were recognized as foreign nations until promulgation of the Indian Appropriations Act of 3 March 1871, which made them wards of, and integrated them into, the Union. The agreements which these comunities had entered into with the Federal Government were regarded as treaties, to be honoured as such; moreover, if they required interpretation, the Supreme Court applied the rule contra proferentem. In the Western Sahara case, the Court appears to have rejected the notion that a European Power could unilaterally appropriate a territory inhabited by indigenous communities. It found that even nomadic tribes inhabiting a territory and having a social and political organization had a personality sufficient under international law for their territory not to be considered terra nullius. According to that jurisprudence, title of sovereignty over a territory thus inhabited cannot therefore be acquired by occupation but only «through agreements concluded with local rulers » (I.C.J. Reports 1975, p. 39, para. 80). In the present case, the Bakassi Peninsula was part of the territory of Old Calabar, subject to the original rule of its Kings and Chiefs. The Applicant itself, paradoxically required by the circumstances to espouse some particularly unacceptable propositions of colonialist discourse, has sought to cast doubt on the existence and independence of that rule by recourse to considerations which, rather, confirm them. Moreover, only the 1884 Treaty, concluded with that form of local rule, could have justified the functions assumed by Great Britain when it

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became the protecting State of those territories, for, if the Kings and Chiefs of Old Calabar did not have capacity to enter into an international agreement, if the 1884 Treaty was not a treaty and had no legal force whatsoever, it must be asked what was the basis for Great Britain to assert its authority over these territories, by what mysterious divine right did it set itself up as the protecting State of these areas of Africa. Pursuant to the 1884 Treaty, Great Britain bestowed upon itself the power to oversee the African nation’s foreign relations, without granting itself authority to negotiate in its name, let alone to settle or relinquish any claim of whatever nature during international negotiations, and in particular to dispose of any part of the nation’s territory. The unlawfulness of the act of cession renders the Anglo-German Treaty of 11 March 1913 invalid in so far as, in defining the last sector of the land boundary, it determines the treatment of Bakassi. The defect in the provisions concerning the Bakassi Peninsula does not however affect the validity of the remainder of the Treaty. This is the situation provided for in Article 44 (3) (a) of the Vienna Convention on the Law of Treaties, which could in theory be overridden by the effect of the next subparagraph, were it possible to show that the cession of Bakassi was an essential condition of Germany’s consent to the rest of the Treaty ; but, as far as I recall, no one so argued.

[p. 567 D.O. Ajibola] 85. On 11 March 1913, Great Britain concluded an agreement with Germany apparently recognizing Germany’s sovereignty over the Bakassi Peninsula. In my view, Great Britain had no authority to conclude such an agreement with either Germany or any other State after it had entered into a binding international treaty about 29 years before then, with the Kings and Chiefs of Old Calabar. As a matter of fact and law Great Britain was under an obligation not to enter into such an agreement with Germany; and such an act was a breach of agreement to which Great Britain was actionably liable in international law.

[pp. 576-577 D.O. Ajibola] 119. The legal force and legal significance of the Treaty of 10 September 1884 is therefore as follows: (a) The Treaty was valid and binding between Great Britain and the Kings and Chiefs of Old Calabar - pacta sunt servanda; (b) The territorial extent of the land of the Kings and Chiefs of Old Calabar as City States of Old Calabar was well known and clearly defined by descriptions and map illustrations attached to the Nigerian Counter–Memorial and Rejoinder;

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(c) Having signed this Agreement with the Kings and Chiefs of Old Calabar, Great Britain was under obligation to protect Old Calabar territories and did not acquire sovereignty over the territories of the Kings and Chiefs of Old Calabar; (d) For Great Britain to enter into an agreement in 1913 with Germany amounted to a serious breach of its international obligation against the territorial rights of the Kings and Chiefs of Old Calabar; (e) Great Britain could not give away what did not belong to it. The Island of Palmas case is an illustrative example. Just as the United States had no sovereignty over the Island of Palmas, ceded to it by Spain, so it is that Germany could not claim any conventional title over the Bakassi Peninsula. Max Huber, in the Arbitration Award states: "It is evident that Spain could not transfer more rights than she herself possessed." (United Nations, Reports of International Arbitral Awards (RIAA), Vol. II, p. 842.) Huber further adds that: "It is evident that whatever may be the right construction of a treaty, it cannot be interpreted as disposing of the rights of independent third Powers." (Ibid.) (f) As already indicated, there is no doubt that the Kings and Chiefs of Old Calabar have legal personality in international law.

120. The Western Sahara Advisory Opinion of 1975 is a glaring example on this issue. The international personality was clearly demonstrated over the territories of the Kings and Chiefs of Old Calabar when they rejected certain provisions in the draft Treaty of 1884, particularly Article VI which guarantees free trade in every part of their territory. Thus, the 1913 Agreement did not deprive the Kings and Chiefs of Old Calabar of sovereignty over their territory and the right to this sovereignty continued till the time of Nigeria’s independence in 1960. It is highly undesirable to create any distinction between the situation in the Western Sahara case (I.C.J. Reports 1975) and the present case, simply because one is in north Africa and the other in sub–Saharan Africa.

[pp. 578-579 D.O. Ajibola] 126. … protectorates are neither colonial protectorates nor colonies. Protectorates are to all intent and purposes international legal personalities and remain independent States and they are not "colonial protectorates" of the protecting Powers. Therefore, after the Treaty of 1884, the City States of Old Calabar and their territories were simply protectorates of Great Britain. Before and after 1913 these City States of Old Calabar remained independent protectorates. There is nothing from the actions and instruments during

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this period which could describe the Old Calabar including Bakassi and other areas being claimed by the Kings and Chiefs, as a colony of Great Britain, nor is there anything in the Treaty indicating that Old Calabar including Bakassi, acquired the status of a colonial protectorate. Even Great Britain did not describe the territory as such and this cannot be done by any inference. In line with the provision of Article 31 of the 1969 Vienna Convention on the Law of Treaties and having regard to customary international law, the ordinary meaning to be given to the word "protectorate" is protectorate and not colonial protectorate. Great Britain at no time possessed territorial control or sovereignty over them. As far as Great Britain was concerned they were foreign countries and they were so treated by the British Foreign Office. Great Britain was therefore under a strict legal obligation to protect the rights of the Kings and Chiefs of Old Calabar in international law and not to transfer their territorial sovereignty to another State without their knowledge and consent.

[p. 601 D.O. Ajibola] 206. As regards the Anglo–German Agreement of 11 March 1913, the Court ought to have preliminarily rejected it as invalid, because the Agreement is inconsistent with the concern of the Great Powers not to transfer "native populations from one administration to another without their consent and even without having informed them or consulted them" (Counter–Memorial of Nigeria, Vol. 1, paras. 8.50–8.51). This Agreement is contrary to the General Act of the Berlin Conference and in particular its Article 6. The European Powers were enjoined "to watch out over the preservation of the native tribes and not to take over or effect transfer of their territory".

[pp. 476-481 D.O. Koroma] 13. The Court, in paragraph 207 of its Judgment, held that the 1884 Treaty signed with the Kings and Chiefs of Old Calabar did not establish an international protectorate and it went on to say that from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them, and that the fact that a delegation was sent to London by the Kings and Chiefs of Old Calabar in 1913 to discuss matters of land tenure cannot be considered as implying international personality and simply confirmed the British administration by indirect rule. According to the Judgment, the Court held that Nigeria itself had not been able to say with clarity and certainty what happened to the international personality of the Kings and Chiefs of Old Calabar after 1885. This implies that the 1884 Treaty did not mean what was stated in it and Great Britain

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was entitled to alienate the territory covered by the Treaty of Protection despite the express provisions of that Treaty.

14. With respect, the reasoning given in support of the finding amounts to a serious distraction from the legal issues at hand. The duty of the Court, in my view, would have been to undertake a proper examination of the Treaty with a view to establishing its intention and meaning. The 1884 Treaty provides as follows: "Article I. Her Majesty the Queen of Great Britain and Ireland, &c, in compliance with the request of the Kings, Chiefs, and people of Old Calabar, hereby undertakes to extend to them, and to the territory under their authority and jurisdiction, her gracious favour and protection. Article 2. The Kings and Chiefs of Old Calabar agree and promise to refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government." (Counter–Memorial of Nigeria, Vol. I, p. 109; emphasis added.)

15. The Treaty is thus unambiguously clear. Great Britain undertook to extend "her gracious favour and protection" to the Kings, Chiefs and people of Old Calabar. According to jurisprudence, a treaty whose terms and provisions are clear does not need to be interpreted. Nor may interpretation be used as a pretext to deny the clear meaning of a legal instrument. However, if the Court chooses to interpret the treaty it has to be interpreted in accordance with the applicable international rules at the time the treaty was concluded. Since the purpose of interpreting a treaty is to ascertain the intention of the parties to the treaty, there is, therefore, no reason to interpret the 1884 Treaty otherwise than in accordance with the international rules which operated at that time and which included the principle of pacta sunt servanda (the sanctity of treaties). Thus, if the Court had interpreted the 1884 Treaty, even in the light of the then existing canons of interpretation, the legal meaning that would have emerged is that the Queen of Great Britain and Ireland undertook to extend to the territory under the authority and jurisdiction of the Kings and Chiefs of Old Calabar "her gracious favour and protection". The creation of the protectorate by the 1884 Treaty did not involve any cession or transfer of territory. On the contrary, the protecting Power – Great Britain – was only to protect the citizens of Old Calabar and not to dispossess them of their territory. Nor did the Treaty confer rights of sovereignty on Great Britain. On the contrary, it conferred a duty of protection and

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not for the benefit of a third party. Accordingly, since the Treaty was validly concluded and this has not been demurred, and Great Britain even raised it against other European States whenever their interests were in conflict in the region, Great Britain thus recognized the sovereignty of the Kings and Chiefs and people of Old Calabar over their territory and this cannot subsequently be denied. The 1884 Treaty thus constitutes evidence of an acknowledgment by Great Britain that the Kings and Chiefs of Old Calabar were capable of entering into a treaty relationship with a foreign Power and that they were recognized as capable of acting at an international level. Therefore, to argue that the 1884 Treaty did not mean what it said would not only be inconsistent with the express provisions of the Treaty itself, but would also be contrary to the rule of pacta sunt servanda (the sanctity of treaties), a rule which forms an integral part of international law and is as old as international law itself. In other words, it is impossible for a State to be released by its own unilateral decision from its obligations under a treaty which it has signed, whatever the relevant method or period. Thus, given that the 1884 Treaty was a treaty of protection and not one of cession involving the alienation of territory, it follows that Great Britain’s authority in relation to the Kings and Chiefs of Old Calabar did not include the power to conclude on their behalf treaties which entitled the protecting State to alienate the territory of the protected State; therefore, the relevant parts of the 1913 Anglo–German Agreement, by which Great Britain purportedly ceded the territory of the Kings and Chiefs of Old Calabar to Germany, lay outside the treaty– making competence of Great Britain, and were not binding on the Kings and Chiefs of Old Calabar nor ultimately on Nigeria as the successor State. There is, therefore, no legal basis on which to hold, as the Court has done in this case, that the protector State was entitled to cede territory without the consent and in breach of the protective agreement, by stating that "from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them" (paragraph 207) or that under the law prevalent at the time (in 1913) Great Britain was entitled "to determine its boundaries" (paragraph 209), even when this affected the territory of a protected State without its consent and inconsistent with the provisions of the relevant Treaty. These conclusions are totally at variance with the express provisions of the 1884 Treaty and in violation of the principle of pacta sunt servanda. Moreover, by concluding the 1884 Treaty, it is clear that the territory of Old Calabar was not regarded as terra nullius but a politically and socially organizted community which was recognized as such and which entered into a treaty relationship with Great Britain, a treaty Great Britain felt able to raise against other European States.

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16. The foregoing is the correct conclusion which the Court would have reached had it taken the proper approach of interpreting the Treaty with respect to the territory of Old Calabar. Such examination would have shown that the Treaty precluded Great Britain from ceding the territory in question. It would also have revealed that Britain was not entitled to cede Bakassi under the terms of the Treaty. Such a finding would have been founded in law. It is common knowledge that territorial titles were acquired by European States in Africa by treaties of cession, but in the case of a protectorate treaty the sovereignty which inhered in the local ruler would be split in such a way that the protector State would exercise rights of external sovereignty in favour of the protected entity whilst the internal sovereignty would continue to be exercised by the local kings and rulers. In this regard, some African protectorate treaties, such as the 1884 Treaty with the Kings and Chiefs of Old Calabar, were expressed in negative clauses, which imposed restrictions on the contracting rulers as far as exercising their external sovereignty is concerned. Under such a treaty, the Kings and Chiefs undertook not to enter into treaties with other Powers, not to maintain relations (including diplomatic intercourse), not to go to war with such Powers, and, most importantly, not to cede territory. Thus, the clause prohibiting transfer of territory to "other" European Powers was considered the most important within the framework of the protectorate. In the case of the 1884 Treaty between the Kings and Chiefs of Old Calabar and Great Britain, Great Britain was not authorized in the international relations of the Kings and Chiefs of Old Calabar, or otherwise, to act in their name and on their behalf, nor did the Kings and Chiefs give up their right and power to make treaties and agreements with foreign States, but agreed that they would do so only after having first informed the British Government and having obtained its approval.

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III. The International Court of Justice 1. FUNDAMENTAL PRINCIPLES 1.1. General Questions

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001 [p. 212 J.D.O. Bedjaoui, Ranjeva and Koroma] 206. In this particularly sensitive case, where public opinion is easily roused, it would have been open to the Court to render its Judgment more readily acceptable if it had taken the initiative of more or less directly encouraging the two Parties to envisage the possibility of mutual financial compensation. The Court's judicial function is not basically incompatible with a certain capacity to make suggestions, or even indicate guidelines, to the parties. Juridical technique has more resources in this regard than might be imagined. On the opening day of the hearings, Professor Salmon made it clear that the return of the Hawars to Qatar would necessarily be accompanied by the compensation of any interests affected by such decision. We are thinking rather of an additional possibility, which would have been open to the Court thanks to a certain effort of the imagination from which it should not have debarred itself, particularly in a case so sensitive for both Parties.

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 505] 107. ... [T]he 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.

[p. 556 D.O. Buergenthal] 21. Germany was aware of the position of the United States Government regarding the non–binding character of orders of this Court indicating

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provisional measures in general and with its interpretation of the Order in the Breard case in particular.

22. It is difficult to understand, therefore, what Germany sought to achieve with its 2 March 1999 request for provisional measures. It certainly could not have been surprised that the United States would adopt the same position with regard to the requested order as it did in relation to the Breard Order of 9 April 1998. There was nothing in the order Germany requested on 2 March 1999 that would have provided the authorities of the United States with a legal basis justifying the Solicitor General to reverse his official position adopted less than a year earlier. In the absence of such a justification, it would have been unprecedented for him not to adhere to his earlier view. Moreover, and that is even more important, the Court itself had not in the meantime clarified its position on the subject. Consequently, when Germany asked the Court to proceed proprio motu and without a hearing, and sought an order identical to that the Court issued in the Breard case, Germany breached an obligation of elementary fairness it owed the United States in the circumstances of this case. It is true, of course, that a party in proceedings before this Court, as before any other court, must bear the consequences of having assumed, erroneously in retrospect, that a given order is non–binding and being held responsible for the resulting violation. But this fact does not relieve Germany of responsibility for having engaged in a litigation strategy prejudicial to the United States.

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[pp. 240-241] 54. Whereas the Court is deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of the Congo resulting from the continued fighting there;

55. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court;

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56. Whereas the Court finds it necessary to emphasize that all parties to proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and other rules of international law, including humanitarian law; whereas the Court cannot in the present case over–emphasize the obligation borne by the Congo and Rwanda to respect the provisions of the Geneva Conventions of 12 August 1949 and of the first Protocol additional to those Conventions, of 8 June 1977, relating to the protection of victims of international armed conflicts, to which instruments both of them are parties;

[p. 249-250] 92. Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties;

93. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law; whereas in particular they are required to fulfil their obligations under the United Nations Charter; whereas the Court cannot but note in this respect that the Security Council has adopted a great number of resolutions concerning the situation in the region, in particular resolutions 1234 (1999), 1291 (2000), 1304 (2000), 1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002) and 1417 (2002); whereas the Security Council has demanded on many occasions that "all the parties to the conflict put an ... end to violations of human rights and international humanitarian law"; and whereas it has inter alia reminded "all parties of their obligations with respect to the security of civilian populations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949", and added that "all forces present on the territory of the Democratic Republic of the Congo are responsible for preventing violations of international humanitarian law in the territory under their control"; whereas the Court wishes to stress the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave

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violations of human rights and international humanitarian law which have been observed even recently;

[pp. 254-255 Decl. Koroma] 15. According to the jurisprudence of the Court, a provisional measure may take the form of an exhortation to "ensure that no step of any kind is taken capable of prejudicing the rights claimed ... or of aggravating or extending the dispute submitted to the Court" (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J., Series A/B, No. 79, p. 199); or it may be granted where it has been shown that there is a risk of irreparable harm or injury which is not illusory or insignificant; or it may consist of a protective measure ordered by the Court encouraging the parties to reach an agreement to preserve the status quo until the merits of the claim are finally adjudged, or it may urge the parties to a dispute not to resort to force and to settle their dispute peacefully on the basis of the law.

16. In my view, if ever a dispute warranted the indication of interim measures of protection, this is it. But while it was not possible for the Court to grant the request owing to certain missing elements, the Court has, in accordance with its obiter dicta in the cited paragraphs, nevertheless discharged its responsibilities in maintaining international peace and security and preventing the aggravation of the dispute. The position taken by the Court can only be viewed as constructive, without however prejudging the merits of the case. It is a judicial position and it is in the interest of all concerned to hearken to the call of the Court.

[pp. 257-259 Decl. Buergenthal] 2. My purpose in appending this Declaration to the instant Order is to express my disagreement with the inclusion in the Court’s Order of the language found in paragraphs 54–56 and 93. My objection to these paragraphs is not to the high– minded propositions they express. Instead, I consider that they deal with matters the Court has no jurisdiction to address once it has ruled that it lacks prima facie jurisdiction to issue the requested provisional measures.

3. ...

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4. The Court’s function is to pronounce itself on matters within its jurisdiction and not to voice personal sentiments or to make comments, general or specific, which, despite their admittedly "feel–good" qualities, have no legitimate place in this Order.

5. Who, for example, would not be "deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of the Congo resulting from the continued fighting there"? (Order, paragraph 54) But the expression of this concern in a formal Order of the Court presupposes that the Court has the requisite jurisdiction to deal with that subject–matter. Having determined that it lacks that jurisdiction, it should not pronounce itself with regard to that subject–matter.

6. In paragraph 55, the Court declares that it "is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter". Of course, how could it be otherwise? But what is the point of this statement? Is it an apologia for the Court’s lack of jurisdiction to do what it would like to do in this case? If so, I wonder whether it is appropriate. But more importantly, the Court’s own "responsibilities in the maintenance of peace and security under the Charter" are not general. They are strictly limited to the exercise of its judicial functions in cases over which it has jurisdiction. In making the above statement, the Court is not performing these functions because of its lack of jurisdiction. The paragraph reads like a preamble to a resolution of the United Nations General Assembly or Security Council, where it would be entirely appropriate. It is not in this Order.

7. As for paragraph 56, the fact that this statement is even–handed in that it addresses both Parties to the case, does not make it any more appropriate than it would be if it had been addressed to only one of them. It is inappropriate, first, because the Court has no jurisdiction in this case to call on the States parties to respect the Geneva Conventions or the other legal instruments and principles mentioned in the paragraph. Second, since the request for preliminary measures by the Democratic Republic of the Congo sought a cessation by Rwanda of activities that might be considered to be violations of the Geneva Conventions, the Court’s pronouncement in paragraph 56 can be deemed to lend some credence to this claim.

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8. This latter conclusion is strengthened by the language of paragraph 93, which bears close resemblance to the language the Court would use if it had granted the provisional measures request. The fact that the paragraph is addressed to both Parties is irrelevant, for in comparable circumstances the Court has issued provisional measures formulated in similar language addressed to both Parties although they were requested by only one of them. See, e.g., 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. 111, para. 47. Besides, the Court lacks jurisdiction in this case to address this appeal to both Parties every bit as much as it would were it to address it to only to one of them.

9. Whether intended or not, the Court’s pronouncements in the foregoing paragraphs, particularly in paragraphs 56 and 93, might be deemed to lend credence to the factual allegations submitted by the Party seeking the provisional measures. In the future, they might also encourage States to file provisional measures requests, knowing that, despite the fact that they would be unable to sustain the burden of demonstrating the requisite prima facie jurisdiction, they would obtain from the Court some pronouncements that could be interpreted as supporting their claim against the other Party.

Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening) (El Salvador v. Honduras), Order of 27 November 2002 [pp. 622-623 Decl. Oda] 5. …An ad hoc Chamber formed under Article 26 of the Statute is essentially an arbitral tribunal. In order for such a Chamber to be constituted, there must be an agreement by the parties, before the Court decides on the constitution, not only as to the number of judges forming the Chamber but also as to their names. Furthermore, the parties must jointly express that agreement when the President, acting pursuant to Article 17 of the Rules of Court, ascertains their views regarding the composition of the Chamber.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

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[pp. 326-329 S.O. Simma] 5. In accordance with what I stated at the outset, the reason why I decided to vote in favour of the first part of the Judgment’s dispositif is that I consider it of utmost importance, and a matter of principle, for the Court to pronounce itself on questions of the threat or use of force in international relations whenever it is given the opportunity to do so. In this regard, the desirable standard of vigour and clarity was set already in the Corfu Channel case where the Court condemned a right to self–help by armed force claimed by the United Kingdom "as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law"125. Unfortunately, in the somber light of developments over the 50 years that have passed since the Corfu Channel case, but more particularly in the recent past, this statement of the Court shows traits of a prophecy.

6. My agreement with the present position of the Court in principle does not however keep me from criticizing the Judgment for what I consider the half–heartedness of the manner in which it deals with the question of the use of force. I recognize of course that there are valid legal reasons for the Court to keep what has to be said on the legality of United States military actions against the oil platforms within the confines of the text of Article XX, paragraph 1 (d), of the Treaty. In fact, my criticism of the Court’s treatment of the issues arising under that provision does not stem from any disagreement with what the text of the Judgment is saying. Rather, what concerns me is what the Court has decided not to say. I find it regrettable that the Court has not mustered the courage of restating, and thus reconfirming, more fully fundamental principles of the law of the United Nations as well as customary international law (principles that in my view are of the nature of jus cogens) on the use of force, or rather the prohibition on armed force, in a context and at a time when such a reconfirmation is called for with the greatest urgency. I accept of course that, since its jurisdiction is limited to the bases furnished by the 1955 Treaty, it would not have been possible for the Court to go as far as stating in the dispositif of its Judgment that, since the United States attacks on the oil platforms involved a use of armed force that cannot be justified as self–defence, these attacks must not only, for reasons of their own, be found not to have been necessary to protect the essential security interests of the 125

Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 35.

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United States within the meaning of Article XX of the Treaty; they must also be found in breach of Article 2 (4) of the United Nations Charter. What the Court could have done, without neglecting any jurisdictional bounds as I see them, is to restate the backbone of the Charter law on use of force by way of strong, unequivocal obiter dicta. Everybody will be aware of the current crisis of the United Nations system of maintenance of peace and security, of which Articles 2 (4) and 51 are cornerstones. We currently find ourselves at the outset of an extremely controversial debate on the further viability of the limits on unilateral military force established by the United Nations Charter126. In this debate, "supplied" with a case allowing it to do so, the Court ought to take every opportunity to secure that the voice of the law of the Charter rise above the current cacophony. After all, the International Court of Justice is not an isolated arbitral tribunal or some regional institution but the principal judicial organ of the United Nations. What we cannot but see outside the courtroom is that, more and more, legal justification of use of force within the system of the United Nations Charter is discarded even as a fig leaf, while an increasing number of writers appear to prepare for the outright funeral of international legal limitations on the use of force. If such voices are an indication of the direction in which legal–political discourse on use of force not authorized by the Charter might move, do we need more to realize that for the Court to speak up as clearly and comprehensively as possible on that issue is never more urgent than today? In effect, what the Court has decided to say - or, rather, not to say - in the present Judgment is an exercise in inappropriate self–restraint.

7. Paragraph 78 of the Judgment concludes that the United States attacks against the oil platforms cannot be justified, under Article XX, paragraph 1 (d), of the Treaty of 1955, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying as acts of self–defence under "international law on the question" (see infra), and thus did not fall within the category of measures that could be contemplated, "upon its correct interpretation", by the said provision of the Treaty. I admit of course that this passage can be read - indeed, it must be read - as stating by way of implication that the United States actions, constituting unilateral use of "armed force not qualifying, under international law ... as acts of self–defence", were therefore in breach of Article 2 (4) of the United Nations Charter. Tertium non datur. It is a great pity 126

Cf. Secretary–General Kofi Annan’s Address to the General Assembly of 23 September 2003, General Assembly, 7th Plenary Meeting, 23 September 2003,

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however that the reasoning of the Court does not draw this necessary conclusion, and thus strengthen the Charter prohibition on the threat or use of armed force, in straightforward, terms. To repeat, I cannot see how in doing so the Court would have gone beyond the bounds of its jurisdiction. The text of the Judgment should have included an unambiguous statement to the effect that the United States military operations against the oil platforms, since they were not conducted in justified self–defence against an armed attack by Iran, must be considered breaches of the prohibition on the use of military force enshrined in the United Nations Charter and in customary international law.

8. Instead of doing so, the text adopted by the majority of the Court explains what is to be understood by the "international law on the question" (para. 78) in a way that comes dangerously close to creating the impression that the Court attempts to conceal the law of the Charter rather than to emphasize it: it speaks throughout its extensive debate on the United States attacks in light of Article XX of "international law on the question" (i.e., the question of the use of force), "international law applicable in the case" or " the relevant rules of international law". What these relevant, applicable, etc. rules actually are is spelled out only once, and then in the subordinate part of a sentence: in paragraph 42, the Judgment states that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of the Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an unlawful use of force "by reference to international law applicable to this question, that is to say, the provisions of the Charter of the United Nations and customary international law" (emphasis added). Again: nowhere else in the part of the Judgment dealing with the United States attacks is the United Nations Charter expressly mentioned. It is difficult to view such hiding of the law of the Charter behind the veil of terms like those that I have quoted above as a mere matter of style; it could unfortunately also be understood as a most unwelcome downgrading of the relevance and importance of the rules of the United Nations Charter on the use of force - as I just said, precisely at a time when the effectiveness of these rules is being challenged to the breaking–point.

[p. 390 S.O. Rigaux] 33. The legal régime to which the United Nations Charter has subjected the use of force between States must be regarded as the “fundamental norm” (Grundnorm) of

A/58/PV.7, at p. 3.

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international law in Kelsen’s sense of the term. The principal judicial organ of the United Nations should have taken the opportunity offered it by the present case to recall that Article 2, paragraph 4, of the Charter is a provision possessing binding force. The Court had jurisdiction to do so, for the two actions of which it was seised both had as their subjectmatter a claim based on a use of force alleged to have been unlawful, the focus of the dispute being the nature and extent of the right of self-defence.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[p. 213 S.O. Higgins] 25. After its somewhat light treatment of international humanitarian law, the Court turns to human rights law. I agree with the Court’s finding about the continued relevance of human rights law in the occupied territories. I also concur in the findings made at paragraph 134 as regards Article 12 of the International Covenant on Civil and Political Rights.

26. At the same time, it has to be noted that there are established treaty bodies whose function it is to examine in detail the conduct of States parties to each of the Covenants. Indeed, the Court’s response as regards the International Covenant on Civil and Political Rights notes both the pertinent jurisprudence of the Human Rights Committee and also the concluding observations of the Committee on Israel’s duties in the occupied territories.

27. So far as the International Covenant on Economic, Social and Cultural Rights is concerned, the situation is even stranger, given the programmatic requirements for the fulfilment of this category of rights. The Court has been able to do no more than observe, in a single phrase, that the wall and its associated régime "impede the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights ..." (para. 134). For both Covenants, one may wonder about the appropriateness of asking for advisory opinions from the Court on compliance by States parties with such obligations, which are monitored, in much greater detail, by a treaty body established for that purpose. It could hardly be an answer that the General Assembly is not setting any more general precedent, because while many, many States are not in compliance with their obligations

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under the two Covenants, the Court is being asked to look only at the conduct of Israel in this regard.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004 [pp. 330-331 J.Decl. Ranjeva, Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby] 3. The choice of the Court has to be exercised in a manner that reflects its judicial function. That being so, there are three criteria that must guide the Court in selecting between possible options. First, in exercising its choice, it must ensure consistency with its own past case law in order to provide predictability. Consistency is the essence of judicial reasoning. This is especially true in different phases of the same case or with regard to closely related cases. Second, the principle of certitude will lead the Court to choose the ground which is most secure in law and to avoid a ground which is less safe and, indeed, perhaps doubtful. Third, as the principal judicial organ of the United Nations, the Court will, in making its selection among possible grounds, be mindful of the possible implications and consequences for the other pending cases.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[p. 190] 26. The Court is aware of the complex and tragic situation which has long prevailed in the Great Lakes region. There has been much suffering by the local population and destabilization of much of the region. In particular, the instability in the DRC has had negative security implications for Uganda and some other neighbouring States. Indeed, the Summit meeting of the Heads of State in Victoria Falls (held on 7 and 8 August 1998) and the Agreement for a Ceasefire in the Democratic Republic of the Congo signed in Lusaka on 10 July 1999 (hereinafter "the Lusaka Agreement") acknowledged as legitimate the security needs of the DRC’s neighbours. The Court is aware, too, that the factional conflicts within the DRC require a comprehensive settlement to the problems of the region.

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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.

[p. 245] 221. The Court finally would point out that, while it has pronounced on the violations of international human rights law and international humanitarian law committed by Ugandan military forces on the territory of the DRC, it nonetheless observes that the actions of the various parties in the complex conflict in the DRC have contributed to the immense suffering faced by the Congolese population. 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.

[pp. 307-310 S.O. Kooijmans] 4. … in order to make its legal assessments and conclusions comprehensible and thereby acceptable to litigant States whose leaders are no trained lawyers (even though they may be assisted by legal professionals), but are the main actors in the process of implementing the judgment, a court should make clear in its reasoning that it is fully aware of the wider context and the complexity of the issues involved. A judgment which is not seen as logical and fair in its historical, political and social dimensions runs the risk of being one compliance with which will be difficult for the parties.

5. The Parties to the present dispute share a hapless post-decolonization history. They have been in the grip of merciless dictatorships which elicited violent resistance and armed rebellions. The overthrow of these dictatorships (in Uganda in 1986 and the Congo in 1997) did not bring internal stability; armed groups, either loyal to the previous régime or pursuing goals of their own and operating from remote parts of their own territory or from abroad continued to threaten the new leadership. In this respect the Parties shared the plight which seems to have become endemic in much of the African continent: régimes under constant threat from armed movements often operating from the territory of neighbouring States, whose governments sometimes support such movements but often merely tolerate them since they do not have the means to control or repel them. The latter case is one where a

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government lacks power and consequently fails to exercise effectively its territorial authority; in short, there is a partial failure of State authority and such failure is badly concealed by the formal performance of State functions on the international level. Commitments entered into by governments unable to implement them are unworthy of reliance from the very start and hardly contribute to the creation of more stability.

6. Under such circumstances, the ruling powers may feel left to their own resources. In order to fight the armed movements operating from abroad, usually by carrying out hit and run tactics, they often engage in a kind of hot pursuit onto neighbouring territory since diplomatic demarches have no effect. They may, moreover, lack all confidence in the good intentions of the neighbour government in spite of its commitments and this may, in turn, induce them to support opposition movements seeking to overthrow that "untrustworthy" government.

7. And so the circle is closed and we find ourselves confronted with a pattern which is so typical for post-Cold War Africa: governments, harassed by armed rebel movements often operating from foreign territory, trying to improve their security by meddling in the affairs of neighbouring States; governments, moreover, which have sometimes come to power through external intervention themselves but which, once in power, turn against their former supporters in order to become master in their own house and to strengthen their grip on the internal situation.

8. Needless to say, such chronic instability and the ensuing incessant practice of unrestrained violence lead to immense human suffering. The human disaster in Rwanda in 1994 is an extreme example, genocidal in dimension, of a much more general pattern of gross violations of human rights by warring factions and authorities trying to remain in power.

9. The organized international community has thus far been unable to provide structural assistance, necessary to strengthen State institutions, and has thus failed to lay the basis for an improved security system in the region. It has mainly limited itself to monitoring the situation, providing a sometimes robust, but more often impotent, peacekeeping assistance in warstricken areas, and to furnishing humanitarian assistance.

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10. It is within this framework that the dispute before the Court must be placed. It is not necessary to describe in detail the crisis as it developed since the 1994 genocide in Rwanda nor to demonstrate how an increasing number of States, in the Great Lakes region and even beyond, became involved. These events have been well documented in various articles and in a great number of reports from United Nations agencies and non-governmental organizations127. Suffice it to say that the Congo’s eastern border area, a "line of political instability on which the future of central Africa may well hinge" (as it was aptly called by David Shearer), occupied a central place in the crisis. The overall picture is moreover obfuscated by the fact that, apart from the governments involved, an even greater number of insurgent movements, sometimes controlled by governments but more often with shifting alliances, determined and determine the situation on the ground.

11. Is it possible to extract from this tangled web one element, to isolate it, to subject it to legal analysis and to arrive at a legal assessment as to its consequences for the relations between only two of the parties involved? A court mandated by its Statute to decide disputes between States whenever it has jurisdiction to do so cannot refrain from carrying out that mandate on the ground that its judgment would only cover one dispute which is indissolubly linked to the overall conflict. The system of international judicial dispute settlement is premised on the existence of a series of bilateral inter-State disputes, artificial as this sometimes may be, as became clear, for example in the Legality of the Use of Force cases (the Federal Republic of Yugoslavia versus ten individual Member States of NATO).

12. In a slightly different context (different in that the dispute before the Court was said to represent "a marginal and secondary aspect of an overall problem" between the Parties) the Court stated that "no provision of the Statute or Rules contemplates that the Court should decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects, however important". In the present case the latter part of the sentence could be 127

See, inter alia, Mel McNulty, “The collapse of Zaire: implosion, revolution or external sabotage?”, The Journal of Modern African Studies, 37 (1999), pp. 53-82; Gérard Prunier, “Rebel Movements and Proxy Warfare: Uganda, Sudan and the Congo (1986-1999)”, African Affairs, 103/412, pp. 359-383; John P. Clark’s article, cited in footnote 1; David Shearer, “Africa’s Great War”, Survival, 41 (1999), pp. 89-106. See also the following reports of the International Crisis Group: “North Kivu, into the Quagmire?” (15 August 1998); “Congo at War, a Briefing on the Internal and External Players in the Central African Conflict” (17 November 1998); “How Kabila Lost his Way” (21 May 1999); “Africa’s Seven-Nation War”

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paraphrased as "merely because that dispute is intricately linked to a much wider problem which involves other parties as well". The Court went on to say that "never has the view been put forward that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal question at issue between them ...; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes" (United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 20, para. 37; emphasis added).

13. The last part of this quotation illustrates the important place assigned by the Charter to the Court in the context of the peaceful settlement of disputes, as is clear from Article 36, paragraph 3, in Chapter VI on the Pacific Settlement of Disputes. The concept of peaceful dispute settlement is premised on the condition that the parties to a dispute find their particular position and their specific concerns reflected in the settlement suggested to or imposed upon them. That settlement must acknowledge those concerns, even if it fails to satisfy the parties’ demands or even censures their conduct.

14. I regret that the Judgment of the Court in my view falls short of meeting the standard just mentioned. It inadequately reflects the structural instability and insecurity in the region, the overall pattern of lawlessness and disorder and the reprehensible behaviour of all parties involved. A reading of the Judgment cannot fail to leave the impression that the dispute is first and foremost a dispute between two neighbouring States about the use of force and the ensuing excesses, perpetrated by one of them. A two-dimensional picture may correctly depict the object shown but it lacks depth and therefore does not reflect reality in full.

[p. 363 D.O. Kateka] 8. At the start of its substantive consideration of the Parties’ contentions, the Court expresses its awareness of the complex and tragic situation which has long prevailed in the Great Lakes region. The Court notes, however, that its task is to respond, on the basis of international law, to the particular legal dispute brought before it. The Court

(21 May 1999); “The Agreement on a Cease-Fire in the Democratic Republic of Congo” (20 August 1999).

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concludes, "[a]s it interprets and applies the law, it will be mindful of context, but its task cannot go beyond that" (Judgment, paragraph 26).

9. However, the task of the Court cannot be in a vacuum. The existing realities must be taken into consideration. In this particular case, the realities include the genocide that happened in Rwanda in 1994. The effects of this genocide still reverberate in the region to this day. One of the root causes of this crisis has been ethnicity, which was exploited by the colonialists during colonial times. An additional factor is the terrible history of unscrupulous dictators – all of whom had support from abroad. In the case of the DRC, it has led to the land of Patrice Lumumba not to experience peace for most of the time since independence. It is only now that there is hope for such peace.

1.2. Consent of States

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Counter–Claims Order of 29 November 2001 [pp. 684-685 Decl. Verhoeven] That said, it is a specific feature of the International Court of Justice that its jurisdiction is currently purely voluntary. That jurisdiction exists only because and insofar as the parties have so desired it. It is therefore possible that the Court, absent agreement, may not be able to assume jurisdiction tomorrow in respect of a claim of which it is seised today by way of counter–claim. Are we accordingly to conclude that the Court should adopt a particularly "liberal" approach when ruling on the admissibility of a counter– claim and, in particular, on the requirement that the counter–claim be directly connected to the subject–matter of the principal claim? I seriously doubt it. It is true that the peaceful settlement of disputes could be enhanced by such an approach. However, the risk is that it would encourage States to avoid a Court which keeps too many "surprises" up its sleeve, rather than submit to its jurisdiction. Further, the internal logic of a system of voluntary jurisdiction undoubtedly requires – irrespective of any considerations of jurisdictional policy – particular rigour in evaluating the connection which the counter–claim must have with the principal claim if it is not to be ruled inadmissible.

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Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[p. 241] 57. Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States entitled to appear before the Court; whereas the Court has repeatedly stated that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction; and whereas the Court therefore has jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned (Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999 (I), p. 132, para. 20).

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003 [pp. 359-361 S.O. Simma] 79. There remains one last question: it could be argued that dealing with the United States generic counter–claim in the direction indicated would by necessity lead the Court to finding that Iraq, too, violated international law - a pronouncement for which the Court has no jurisdiction in the present case. This is the essence of the so–called "indispensable–third–party" doctrine, consecutively accepted and rejected by the Court depending on the circumstances of the cases at hand.

80. The doctrine, first spelled out in the Monetary Gold case, holds that the Court has no jurisdiction to decide a case where a third State’s "legal interests would not only be affected

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by the decision, but would form the very–subject matter of the decision"128. Since then, the Court dismissed the argument in some cases as one which could not prevent the Court from exercising jurisdiction among the parties, such as in the Nicaragua case, the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) or the case of Certain Phosphate Lands in Nauru (Nauru v. Australia). In other instances, the Court did apply the Monetary Gold principle and refused to adjudicate absent the consent of the interested third State, such as in East Timor (Portugal v. Australia).

81. Taking a closer look at the factual circumstances of each of these cases, it appears that the concept of "indispensable third parties" has been interpreted restrictively by the Court. In the present case, the role of Iraq in impeding the freedom of commerce and navigation between the United States and Iran certainly does not constitute the subject–matter of the dispute. Moreover, any findings by the Court as to Iraq’s behaviour would only rely on common knowledge and there would be no need for additional evidence (i.e., proving that, because of the war, Iraq, like Iran, contributed to the deterioration of the shipping conditions in the Gulf). For this reason, the present case would not have fallen within the restrictive ambit of the doctrine of the "indispensable third party". The mere fact that the war in the region involved a State not party to the present proceedings or, for that matter, to the bilateral treaty between Iran and the United States, could not have prevented the Court from deciding upon Iran’s responsibility under this Treaty. The Court could have found Iran responsible without engaging in any detailed assessment of Iraq’s actions, or rendering any decision as to Iraq’s responsibility per se129.

82. Even more convincing, I believe, is the Court’s dismissal in the Nauru case of Australia’s argument that, Australia being only one of three States making up the Administering Authority under the Trusteeship Agreement, a claim could only be brought against the three of them "jointly" but not against each of them individually. The Court distinguished the issue of reparation in full from the question whether Australia could be sued alone, and continued:

128

Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment, I.C.J. Reports 1954, p. 32. A similar principle had already been developed by the PCIJ in the Advisory Opinion on the Status of Eastern Carelia (P.C.I.J., Series B, No. 5) and by this Court in the Corfu Channel case in 1949 (I.C.J. Reports 1949).

129

In East Timor the Court clearly stated that “it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not party to the case” (I.C.J. Reports 1995, p. 104, para. 34).

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"The Court does not consider that any reason has been shown why a claim brought against only one of the three States should be declared inadmissible in limine litis merely because that claim raises questions of the administration of the Territory, which was shared with two other States."130 In the present case, where two States contributed to a single, indivisible damage without having acted in concert (unlike the three States in the Nauru case), the holding of the Court in the Nauru case applies with even greater strength: if the Court did not see fit to declare the Nauru case inadmissible on the basis that States acting "jointly" were absent from the proceedings, it could not have held inadmissible the United States counter–claim, in the context of which States were acting independently of each other.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp.

157-159] 47. 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 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

130

Certain Phosphate Lands in Nauru (Nauru v. Australia), I.C.J. Reports 1992, pp. 258–259,

para. 48.

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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.) It followed from this that, in those proceedings, the Court did not refuse to respond to the request for an advisory opinion on the ground that, in the particular circumstances, it lacked jurisdiction. The Court did however examine the opposition of certain interested States to the request by the General Assembly in the context of issues of judicial propriety. 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.) In applying that principle to the request concerning Western Sahara, the Court found that a legal controversy did indeed exist, but one which had arisen during the proceedings of the General Assembly and in relation to matters with which the Assembly was dealing. It had not arisen independently in bilateral relations (ibid., p. 25, para. 34).

48. As regards the request for an advisory opinion now before it, the Court acknowledges that Israel and Palestine have expressed radically divergent views on the legal consequences of Israel’s construction of the wall, on which the Court has been asked to pronounce. 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

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West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34).

49. Furthermore, the Court does not consider that the subject–matter of the General Assembly’s request can be regarded as only a bilateral matter between Israel and Palestine. Given the powers and responsibilities of the United Nations in questions relating to international peace and security, it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations. The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine (see paragraphs 70 and 71 below). This responsibility has been described by the General Assembly as "a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy" (General Assembly resolution 57/107 of 3 December 2002). Within the institutional framework of the Organization, this responsibility has been manifested by the adoption of many Security Council and General Assembly resolutions, and by the creation of several subsidiary bodies specifically established to assist in the realization of the inalienable rights of the Palestinian people.

50. 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.

*

1.3. Equality of Parties

1.4. Political Questions/Determination of the Existence of a Dispute

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LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001 [p. 544-545 S.O. Parra–Aranguren] 4. The existence of a dispute is a condition sine qua non established by Article I of the Optional Protocol for the compulsory jurisdiction of the Court. It is also required by the Statute of the Court. Article 38, paragraph 1, of the Statute states that the function of the Court in contentious cases "is to decide in accordance with international law such disputes as are submitted to it". Article 36, paragraph 2, and paragraph 1 of Article 40 also refer to the dispute between the Parties. Accordingly, the Court has stated that the existence of a dispute is an "essentially preliminary" question and that it is "the primary condition for the Court to exercise its judicial function" (Nuclear Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974, p. 260, para. 24; pp. 270–271, para. 55).

[pp. 545-546 S.O. Parra–Aranguren] 7. As recognized in many paragraphs of the Judgment, e.g., the first sentence of paragraph 39, the Parties agree that the United States did not inform the LaGrand brothers without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Vienna Convention, thus violating that provision. Paragraph 39 of the Judgment adds that the United States did not deny that such violation "has given rise to a dispute between the two States".

8. However, the Court explained in its Judgment of 11 June 1998 that "'in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties ...' (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99– 100, para. 22); and that '[i]n 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)' (I.C.J. Reports 1995, p. 100)." (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria). Preliminary Objections, I.C.J. Reports 1998, pp. 314–315, para. 87).

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9. The Court has also stated that "it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non– existence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict." (South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p. 328.)

10. On the basis of these criteria, even assuming that the United States had not denied the existence of a dispute, it has not been shown objectively to the Court that the Parties maintain positively opposed positions on this point. On the contrary, as it appears from the submissions quoted above, they agree on the breach by the United States of its violation of Article 36, paragraph 1 (b), of the Vienna Convention. Therefore, in my opinion, the Court does not have jurisdiction under Article I of the Optional Protocol to decide whether the United States breached Article 36, paragraph 1 (b), when arresting the LaGrand brothers. Nor can the Court exercise its functions under Article 38, paragraph 1, of its Statute. For this reason I voted against operative paragraph 128 (1) and (2) (a) of the Judgment.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [p. 47 D.O. Oda] 3. … the Congo’s Application provides no basis on which to infer that the Congo ever thought that a dispute existed between it and Belgium regarding the arrest warrant issued by a Belgian investigating judge on 11 April 2000 against Mr. Yerodia, the Minister for Affairs of the Congo. The word "dispute" appears in the Application only at its very end, under the heading "V. Admissibility of the Present Application", in which the Congo stated that: "As to the existence of a dispute on that question [namely, the question that the Court is called upon to decide], this is established ab initio by the very fact that it is the non– conformity with international law of the Law of the Belgian State on which the investigating judge founds his warrant which is the subject of the legal grounds which [the Congo] has submitted to the Court." (Emphasis added.)

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Without giving any further explanation as to the alleged dispute, the Congo simply asserted that Belgium’s 1993 Law, as amended in 1999, concerning the Punishment of Serious Violations of International Humanitarian Law contravened international law.

4. The Congo’s mere belief that the Belgian law violated international law is not evidence, let alone proof, that a dispute existed between it and Belgium. It shows at most that the Congo held a different legal view, one opposed to the action taken by Belgium. It is clear that the Congo did not think that it was referring a dispute to the Court. The Congo, furthermore, never thought of this as a legal dispute, the existence of which is a requirement for unilateral applications to the Court under Article 36, paragraph 2, of the Court’s Statute. The Congo’s mere opposition to the Belgian Law and certain acts taken by Belgium pursuant to it cannot be regarded as a dispute or a legal dispute between the Congo and Belgium. In fact, there existed no such legal dispute in this case.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 155-156] 41. Furthermore, the Court cannot accept the view, which has also been advanced in the present proceedings, that it has no jurisdiction because of the "political" character of the question posed. As is clear from its long–standing jurisprudence on this point, 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

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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, I.C.J. Reports 1996 (I), p. 234, para. 13.) 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). Moreover, the Court has affirmed in its Opinion on the Legality of the Threat or Use of Nuclear Weapons that "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). The Court is of the view that there is no element in the present proceedings which could lead it to conclude otherwise.

Case Concerning Certain Property (Liechtenstein v. Germany) Preliminary Objections Judgment of 10 February 2005

[pp. 18-19] 24. 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, 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,

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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).

25. The Court recalls that Liechtenstein has characterized its dispute with Germany as involving the violation of its sovereignty and neutrality by the Respondent, which, for the first time in 1995, treated Liechtenstein property confiscated under the Beneš Decrees as German external assets for the purposes of the Settlement Convention, notwithstanding Liechtenstein’s status as a neutral State. Germany for its part denies altogether the existence of a dispute with Liechtenstein. It asserts instead that "the subject-matter of this case" is the confiscation by Czechoslovakia in 1945 of Liechtenstein property without compensation; Germany considers further that, in the case of Liechtenstein, German courts simply applied their consistent case law to what were deemed German external assets under the Settlement Convention. The Court thus finds that in the present proceedings complaints of fact and law formulated by Liechtenstein against Germany are denied by the latter. In conformity with wellestablished jurisprudence (see paragraph 24 above), the Court concludes that "[b]y virtue of this denial, there is a legal dispute" between Liechtenstein and Germany (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 615, para. 29). The Court further notes that Germany’s position taken in the course of bilateral consultations and in the letter by the Minister for Foreign Affairs of 20 January 2000 has evidentiary value in support of the proposition that Liechtenstein’s claims were positively opposed by Germany and that this was recognized by the latter.

26. It remains for the Court to identify the subject-matter of the dispute before it. Upon examination of the case file, the Court finds that the subject-matter of the dispute is whether, by applying Article 3, Chapter Six, of the Settlement Convention to Liechtenstein property that had been confiscated in Czechoslovakia under the Beneš

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Decrees in 1945, Germany was in breach of the international obligations it owed to Liechtenstein and, if so, what is Germany’s international responsibility.

[pp. 49-50 D.O. Owada] 8. It is clear that here the Parties are presenting their respective different positions on the "subject-matter of the dispute" in the present case, not only by employing different formulations but also by addressing different substances. Needless to say, the question of what constitutes the dispute in a case before this Court in the final analysis has to be decided by the Court. Nevertheless, it stands to reason that since the case has been brought before the Court by Liechtenstein as Applicant against Germany as Respondent, it is in the Submissions of the Applicant that the formulation of the claims on which the Court must adjudicate is to be sought (cf. Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 27).

[p. 69 Decl. Fleischhauer] … I cannot follow the Court where it says that it "further notes that Germany's position taken in the course of bilateral consultations and in the Letter by the Minister for Foreign Affairs of 20 January 2000 has evidentiary value in support of the proposition that Liechtenstein's claims were positively opposed by Germany and that this was recognized by the latter" (ibid.). I think that these words would reveal themselves as introducing too low a standard into the determination of the existence of a dispute and therefore have negative effects on the readiness of States to engage in attempts at peaceful settlements of disputes.

1.5. Ius standi

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004

[p. 295] 36. … 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

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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.

[pp. 298-299] 46. … As the Court observed earlier (see paragraph 30 above), 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 fundamental; for if it were not such a party, the Court would not be open to it under Article 35, paragraph 1, of the Statute. In that situation, subject to any application of paragraph 2 of that Article, Serbia and Montenegro could not have properly seised the Court, whatever title of jurisdiction it might have invoked, for the simple reason that Serbia and Montenegro did not have the right to appear before the Court. 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. 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.).

[pp. 314-315] 88. … On the critical question of the Federal Republic of Yugoslavia’s admission to the United Nations as a new Member, the Court emphasized that "General Assembly resolution 55/12 of 1 November 2000 cannot have changed retroactively the sui generis position which the FRY found itself in vis-à-vis the

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United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court and the Genocide Convention" (ibid., para. 71). These statements cannot however be read as findings on the status of Serbia and Montenegro in relation to the United Nations and the Genocide Convention; the Court had already implied that it was not called upon to rule on those matters, and that it was not doing so.

89. In the immediately following paragraph of the Judgment, the Court stated: "It follows from the foregoing that it has not been established that the request of the FRY is based upon the discovery of ‘some fact’ which was ‘when the judgment was given, unknown to the Court and also to the party claiming revision’. The Court therefore concludes that one of the conditions for the admissibility of an application for revision prescribed by paragraph 1 of Article 61 of the Statute has not been satisfied." (Ibid., para. 72.) The Court thus made its position clear that there could have been no retroactive modification of the situation in 2000, which would amount to a new fact, and that therefore the conditions of Article 61 were not satisfied. This, however, did not entail any finding by the Court, in the revision proceedings, as to what that situation actually was.

90. Given the specific characteristics of the procedure under Article 61 of the Statute, in which the conditions for granting an application for revision of a judgment are strictly circumscribed, there is no reason to treat the Judgment in the Application for Revision case as having pronounced upon the issue of the legal status of Serbia and Montenegro vis-à-vis the United Nations. Nor does the Judgment pronounce upon the status of Serbia and Montenegro in relation to the Statute of the Court.

91. For all these reasons, the Court concludes that, at the time of filing of its Application to institute the present proceedings before the Court on 29 April 1999, the Applicant in the present case, Serbia and Montenegro, was not a Member of the United Nations, and consequently, was not, on that basis, a State party to the Statute of the

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International Court of Justice. It follows that the Court was not open to Serbia and Montenegro under Article 35, paragraph 1, of the Statute.

[p. 315] 92. The Court will now consider whether it might be open to Serbia and Montenegro under paragraph 2 of Article 35, which provides that: "The conditions under which the Court shall be open to other States [i.e. States not parties to the Statute] shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court." The conditions of access provided for in this text were laid down by the Security Council in resolution 9 (1946); but Serbia and Montenegro has not invoked that resolution, or brought itself within the terms laid down therein.

93. The Court notes that the Applicant, in the present case, has not in fact claimed that the Court is open to it under paragraph 2 of Article 35, but has based its right of access to the Court solely on paragraph 1 of the Article. However, in some of the cases concerning Legality of Use of Force, including the present one, the Respondent has in its preliminary objections, or in oral argument, raised the question of the possible application of paragraph 2, in order to contend that Serbia and Montenegro may not rely upon that text. In this context, reference has been made to an Order of the Court in another case, in which the provisional view was expressed that Article IX of the Genocide Convention could be considered as a special provision contained in a treaty in force. The Court is therefore of the view that in the circumstances of this case it is appropriate for it to examine the possible application of paragraph 2 of Article 35.

[pp. 318-319] 101. Article 35, paragraph 2, refers to "the special provisions contained in treaties in force", in the context of the question of access to the Court. 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

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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 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).

102. 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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103. The first interpretation, according to which Article 35, paragraph 2, refers to treaties in force at the time that the Statute came into force, is in fact reinforced by an examination of the travaux préparatoires of the text.

[pp. 323-324] 113. The Court considers that the legislative history of Article 35, paragraph 2, of the Statute of the Permanent Court demonstrates that it was intended as an exception to the principle stated in paragraph 1, in order to cover cases contemplated in agreements concluded in the aftermath of the First World War before the Statute entered into force. However, the travaux préparatoires of the Statute of the present Court are less illuminating. The discussion of Article 35 was provisional and somewhat cursory; it took place at a stage in the planning of the future international organization when it was not yet settled whether the Permanent Court would be preserved or replaced by a new court. Indeed, the records quoted in paragraphs 110 to 112 above do not include any discussion which would suggest that Article 35, paragraph 2, of the Statute should be given a different meaning from the corresponding provision in the Statute of the Permanent Court. It would rather seem that the text was reproduced from the Statute of the Permanent Court; there is no indication that any extension of access to the Court was intended. Accordingly Article 35, paragraph 2, must be interpreted, mutatis mutandis, in the same way as the equivalent text in the Statute of the Permanent Court, namely as intended to refer to treaties in force at the date of the entry into force of the new Statute, and providing for the jurisdiction of the new Court. In fact, no such prior treaties, referring to the jurisdiction of the present Court, have been brought to the attention of the Court, and it may be that none existed. In the view of the Court, however, neither this circumstance, nor any consideration of the object and purpose of the text, nor the travaux préparatoires, offer support to the alternative interpretation that the provision was intended as granting access to the Court to States not parties to the Statute without any condition other than the existence of a treaty, containing a clause conferring jurisdiction on the Court, which might be concluded any time subsequently to the entry into force of the Statute. As noted above (paragraph 102), this interpretation would lead to a result quite incompatible with the object and purpose

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of Article 35, paragraph 2, namely the regulation of access to the Court by States nonparties to the Statute. In the view of the Court therefore, the reference in Article 35, paragraph 2, of the Statute to "the special provisions contained in treaties in force" applies only to treaties in force at the date of the entry into force of the Statute, and not to any treaties concluded since that date.

114. The Court thus concludes that, even assuming that Serbia and Montenegro was a party to the Genocide Convention at the relevant date, Article 35, paragraph 2, of the Statute does not provide it with a basis to have access to the Court, under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute (see paragraph 113). The Court does not therefore consider it necessary to decide whether Serbia and Montenegro was or was not a party to the Genocide Convention on 29 April 1999 when the current proceedings were instituted.

[pp. 326-327] 123. The question however remains whether the provisions of the 1930 Convention, which was concluded prior to the entry into force of the Statute, might rank as "special provisions contained in treaties in force" for this purpose. It must be observed that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice.

124. It is true that the jurisdiction of the Permanent Court under treaties in force was preserved and transferred, on certain conditions, to the present Court by Article 37 of its Statute. Article 37 reads as follows: "Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice." (Emphasis added.) The effect of this text is that the parties to such a treaty, by becoming parties to the Statute, agree that the reference in their treaty to the Permanent Court shall be read as a

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reference to the present Court. However, it does not signify that a similar substitution is to be read into Article 35, paragraph 2, of the Statute, which relates, not to consensual jurisdiction, but to the conditions of access to the Court. The Court notes that Article 37 of the Statute can be invoked only in cases which are brought before it as between parties to the Statute, i.e. under paragraph 1 of Article 35, and not on the basis of paragraph 2 of that Article.

125. As regards jurisdiction, when a treaty providing for the jurisdiction of the Permanent Court is invoked in conjunction with Article 37, the Court has to satisfy itself, inter alia, that both the Applicant and the Respondent were, at the moment when the dispute was submitted to it, parties to the Statute. As the Court observed in the Barcelona Traction case, "three conditions are actually stated in the Article. They are that there should be a treaty or convention in force; that it should provide (i.e., make provision) for the reference of a ‘matter’ (i.e., the matter in litigation) to the Permanent Court; and that the dispute should be between States both or all of which are parties to the Statute." (I.C.J. Reports 1964, p. 32.) As just noted above, the Court has already determined that Serbia and Montenegro was not a party to the Statute of the Court on 29 April 1999 when it instituted proceedings against Belgium (see paragraphs 91 and 121 above). Article 37 of the Statute of the Court therefore had no application as between Serbia and Montenegro and Belgium at the date of the institution of proceedings.

[pp. 360-363 S.O. Elaraby] 7. Even assuming – without deciding131 – that the Court is correct in holding that the term "treaties in force" should be given a more restrictive

131

The Court’s interpretation conflicts with the prior jurisprudence of the Permanent Court in the Certain German Interests in Polish Upper Silesia case, in which the Permanent Court impliedly construed the expression “treaties in force” as meaning any treaty in force at the time when the case was brought before the Court. P.C.I.J., Series A, No. 6. See also statement of Registrar Ake Hammarskjöld: “The Council’s Resolution of May 17th, 1922, would have no bearing on cases submitted to the Court under a general treaty; for any State which was a party to a general treaty might then, without making any special declaration [as required by the Security Council resolution], be a party before the Court. The only case, therefore, in which the Council’s resolution

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interpretation than the interpretation it is given when it appears in Articles 36 and 37, in my view the interpretation adopted by the Court – limiting "treaties in force" to treaties in force at the time the Court’s Statute came into force – is unduly restrictive.

8. The Court’s interpretation of "treaties in force" is primarily based on statements in the travaux préparatoires of the Statute of the Permanent Court of International Justice (PCIJ), which contained the original, and substantially identical, provision. These statements suggest to the Court that when considering the term "treaties in force" in Article 35, paragraph 2, the provision’s drafters had in mind the peace treaties with former First World War enemy States (who were not Members of the League of Nations and would otherwise not have access to the Court) concluded before the entry into force of the Court’s Statute.

9. However, there is evidence from the discussion of the Statute’s drafters that such a narrow interpretation is not warranted. The peace treaties were considered to encompass all "[t]reaties of Peace dealing with the rights of minorities, labour, etc."132 including any "[t]reaties other than the German Treaty [that] form[ed] part of the general peace settlement"133 and provided for judicial dispute settlement. This interpretation was confirmed in 1926 when the Court was considering amendments to the Court’s Rules. At this juncture it was stated that Article 35 related to "situations provided for by the treaties of peace" (1926, P.C.I.J., Series D, No. 2 Add., Acts and Documents, p. 106, emphasis added). And "it was decided ... not to lay down, once and for all, in what cases" such treaties might provide non-League Members access to the Court134.

applied was that in which a suit was brought before the Court by special agreement.” (1926 P.C.I.J., Series D, No. 2, Add., Revision of the Rules of the Court, p. 76.) 132

League of Nations, Records of the First Assembly, Plenary Meetings, Twentieth Plenary Meeting, Annex A, Reports on the Permanent Court of [International] Justice Presented by the Third Committee to the Assembly (1920), p. 463.

133

Secretariat of the League of Nations, Memorandum on the Different Questions Arising in Connection with the Establishment of the Permanent Court of International Justice, reprinted in PCIJ Advisory Committee of Jurists, Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice (1920), p. 17.

134

Report of the Registrar of the Court, reprinted in 1936 P.C.I.J., Series D, No. 2, 3rd Add., p. 818 (“It was decided ... not to lay down, once and for all, in what cases declarations were required (question of the Peace Treaties)”.

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10. Indeed, there were numerous treaties and conventions connected with the Peace Settlement of 1919, including labour treaties adopted by the International Labour Conference, treaties regarding the various mandates approved by the Council of the League of Nations, and treaties concerning the protection of minorities135.

11. By analogy, in the context of the ICJ Statute drafted in the aftermath of the Second World War, the Genocide Convention can be considered a treaty connected with the peace settlement. Barely a year after the end of the war, there was already a General Assembly resolution136 mandating the Economic and Social Council to prepare a draft convention prohibiting genocide as a crime against international law. The Convention was the first post-war treaty in the area of human rights and was considered to be the United Nation’s first concrete legal response to the Holocaust. The philosophy, object and purpose of the Convention as a whole are a direct outcome of the tragic events of the Second World War. Thus, when the Convention was drafted, it was stressed that "Having regard to the troubled state of the world, it was essential that the convention should be adopted as soon as possible, before the memory of the barbarous crimes which had been committed faded from the minds of men."137

12. The fact that the Genocide Convention came into force after the Statute of the Court does not change this conclusion. The PCIJ drafters clearly contemplated that the treaties "in force" under Article 35 included not only those that were already in force, but also treaties granting non-League Members access to the Court which were still in draft form and under negotiation138.

135

See M. Hudson, The Permanent Court of International Justice 1920-1942 (1972), pp. 439-444 (giving examples).

136

United Nations doc. A/96(I) (11 December 1946).

137

United Nations, Official Records of the General Assembly, Committees, Third Session, Part I, Sept.-Dec. 1948 Vol. 4, Report of the Economic and Social Council, Sixth Committee, Legal Questions, Sixty-first Meeting (1948), p. 5.

138

Secretariat of the League of Nations, Memorandum on the Different Questions Arising in Connection with the Establishment of the Permanent Court of International Justice, reprinted in PCIJ Advisory Committee of Jurists, Documents Presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice (1920), p. 17.

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13. This is confirmed in the Permanent Court’s jurisprudence in the Certain German Interests in Polish Upper Silesia case139. In this case, Germany, a non-League Member, was the applicant and the PCIJ’s jurisdiction was derived from the German-Polish Convention relating to Upper Silesia, which was concluded after the adoption of the PCIJ Statute. Poland did not dispute the fact that the suit had been duly submitted to the Court under Article 35, and the Court found itself, on the basis of the treaty alone – (Germany had not complied with the conditions laid down by the Security Council) – able to exercise jurisdiction over the parties to the case.

14. When the PCIJ considered the revision of its Rules in 1926, Judge Anzilotti explained that the German Interests case "related to a treaty – the Upper Silesian Convention – drawn up under the auspices of the League of Nations which was to be considered as supplementary to [a First World War Peace Treaty,] the Treaty of Versailles. It was therefore possible to include the case in regard to which the Court had then to decide in the general expression ‘subject to treaties in force’, whilst construing that expression as referring to the peace treaties."140 Similarly, being the first major human rights convention drawn up under the auspices of the United Nations, the Genocide Convention can be considered supplementary to the Second World War peace treaties and consequently come within the definition of Article 35’s "treaties in force" even though it entered into force after the Statute of the Court.

15. As an additional argument, I believe that even if one adopts the Court’s interpretation of "treaties in force" as encompassing only those treaties which, like the Peace Treaties, were in force before the Statute of the Court came into force141, a special, broader interpretation of the expression is appropriate in a case which, like the present case, involves a multilateral treaty of a universal character which is intended to remedy violations of jus cogens. On this point, I subscribe to the view of Professor Sienho Yee, that in cases involving jus cogens, there is a special need

139

P.C.I.J., Series A, No. 6.

140

Minutes of Meeting of the PCIJ on 21 July 1926 on amending its Rules of Court, at 1926 P.C.I.J., Series D, No. 2, Add., Acts and Documents, p. 105 (emphasis added).

141

The Court notes in para. 113 that, in the context of the present Court, there were no such treaties in force prior to the Statute.

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16. Thus, even if the PCIJ drafters primarily had in mind the special category of existing peace treaties, to the exclusion of all others, their original intent should give way, in the context of the ICJ Statute, to a broader interpretation of "treaties in force" that includes multilateral treaties addressing jus cogens violations which have largely emerged in the post-Second World War era.

17. Because of the overriding importance of such treaties to the progressive development of international law and the maintenance of peace, they are, and should be, subject to a special interpretation. Cf. Article 60, paragraph 5, of the Vienna Convention on the Law of Treaties (non-applicability of treaty termination rules to "provisions relating to the protection of the human person contained in treaties of a humanitarian character"); the Court’s Advisory Opinion on Reservations to Genocide Convention (limiting ability of States to enter reservations to the Genocide Convention) (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.Ci.J. Reports 1951, p. 24), and Order on Counter-Claims in the Application of the Genocide Convention case (limiting applicability of reciprocity rules in context of Genocide Convention) (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-Claim, Order of 17 December 1997, I.C.J. Reports 1997, p. 258, para. 35).

18. In sum, the Genocide Convention and other treaties that either relate to the peace settlement following the Second World War, or are aimed at redressing violations of jus cogens should be interpreted as "treaties in force" under Article 35, paragraph 2, as long as they are in force at the time an application is instituted before the Court.

142

Vienna Convention on the Law of Treaties, Art. 53. See also Ian Brownlie, Principles of Public International Law (4th ed., 1990), pp. 512-515.

143

S. Yee, The Interpretation of “Treaties in Force” in Article 35 (2) of the Statute of the ICJ, 47 ICLQ 884, 903 (1998).

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1.8. Principle of Clean Hands

Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 176-178] 27. The Court will first consider a contention to which the United States appears to have attributed a certain preliminary character. The United States asks the Court to dismiss Iran’s claim and refuse it the relief it seeks, because of Iran’s allegedly unlawful conduct, i.e., its violation of the 1955 Treaty and other rules of international law relating to the use of force. The United States invokes what it suggests are three related principles in support of this request. First, a party that acts improperly with respect to the subject– matter of a dispute is not entitled to relief; according to the United States, Iran had committed, at the time of the actions against the platforms, manifestly illegal armed attacks on United States and other neutral shipping in the Persian Gulf, and it has misrepresented, in the present proceedings, the facts of the case before the Court. Second, a party that has itself violated obligations identical to those that are the basis for its application is not entitled to relief and Iran had allegedly infringed itself the "mutual and reciprocal" obligations arising from the 1955 Treaty. Third, an applicant is not entitled to relief when the actions it complains of were the result of its own wrongful conduct. Thus the United States claims that the attacks on the platforms were a consequence of Iran’s previous wrongful behaviour in the Persian Gulf.

28. Iran responds that the concept of "clean hands" underlying these arguments of the United States, "while reflecting and incorporating fundamental principles of law inspired by good faith, is not an autonomous legal institution". It contends that the concept of "clean hands" requires the operation of other institutions or legal rules for its implementation. Iran argues that the "plaintiff’s own wrongful conduct" as a ground for inadmissibility of a claim relates to claims arising in the context of diplomatic protection

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and concerns only a foreign individual’s "clean hands", but that such a principle is irrelevant in direct State–to–State claims. According to Iran, as far as State–to–State claims are concerned, such principle may have legal significance only at the merits stage, and only at the stage of quantification of damages, but does not deprive a State of locus standi in judicio.

29. The Court notes that these issues were first raised by the United States in its Counter– Memorial, after the Judgment of the Court of 12 December 1996 on the preliminary objection of the United States to jurisdiction. In that pleading those issues were dealt with at the end, after the United States had set out its arguments on the merits, and not by way of a preliminary issue. In subsequent pleadings and in oral argument it has presented them as having rather a preliminary character, but it has nevertheless not gone so far as to suggest that they are issues of admissibility, appropriate to be enquired into before any examination of the merits. Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits. That is not the case here. The United States does not ask the Court to find Iran’s claim inadmissible; it asks the Court to dismiss that claim. It does not argue that the Court should be debarred from examining the merits of the Iranian claim on the grounds of Iran’s conduct; rather it argues that Iran’s conduct is such that it "precludes it from any right to the relief it seeks from this Court", or that it "should not be permitted to recover on its claim". The United States invites the Court to make a finding "that the United States measures against the platforms were the consequence of Iran’s own unlawful uses of force" and submits that the "appropriate legal consequences should be attached to that finding". The Court notes that in order to make that finding it would have to examine Iranian and United States actions in the Persian Gulf during the relevant period – which it has also to do in order to rule on the Iranian claim and the United States counter-claim.

30. At this stage of its judgment, therefore, the Court does not need to deal with the request of the United States to dismiss Iran’s claim and refuse the relief that it seeks on

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the basis of the conduct attributed to Iran. Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[p. 38] 45. The Court has now to examine the objection of the United States that the claim of Mexico is inadmissible in that Mexico should not be allowed to invoke against the United States standards that Mexico does not follow in its own practice. The United States contends that, in accordance with basic principles of administration of justice and the equality of States, both litigants are to be held accountable to the same rules of international law. The objection in this regard was presented in terms of the interpretation of Article 36 of the Vienna Convention, in the sense that, according to the United States, a treaty may not be interpreted so as to impose a significantly greater burden on any one party than the other (Diversion of Water from the Meuse, Judgment, 1937, P.C.I.J., Series A/B, No. 70, p. 20).

46. The Court would recall that the United States had already raised an objection of a similar nature before it in the LaGrand case; there, the Court held that it need not decide "whether this argument of the United States, if true, would result in the inadmissibility of Germany’s submissions", since the United States had failed to prove that Germany’s own practice did not conform to the standards it was demanding from the United States (I.C.J. Reports 2001, p. 489, para. 63).

47. The Court would recall that it is in any event essential to have in mind the nature of the Vienna Convention. It lays down certain standards to be observed by all States parties, with a view to the "unimpeded conduct of consular relations", which, as the Court observed in 1979, is important in present–day international law "in promoting the development of friendly relations among nations, and ensuring protection and assistance for aliens resident in the territories of other States" (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Order of 15 December 1979, I.C.J. Reports 1979, pp. 19–20, para. 40). Even if it were shown, therefore, that Mexico’s

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practice as regards the application of Article 36 was not beyond reproach, this would not constitute a ground of objection to the admissibility of Mexico’s claim. The fifth objection of the United States to admissibility cannot therefore be upheld.

1.9. Composition of the Court Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening) (El Salvador v. Honduras), Order of 27 November 2002 [pp. 621-622 Decl. Oda] 2. Article 100, paragraph 1, of the Rules of Court provides as follows: "If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. lf the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber." The meaning of the expression "that Chamber" is not entirely clear. It certainly cannot mean that the Chamber charged with dealing with a request for the revision of a judgment should have precisely the same composition as that which rendered the judgment. Under the terms of Article 61, paragraph 5, of the Statute, a request for revision may be made up to ten years from the date of the judgment concerned. Clearly, in many cases it will be materially impossible to reconstitute a Chamber in its original composition after so great a lapse of time. To require that the Chamber to be formed to deal with a request for revision should have the same composition as the original Chamber might thus in practice render an application for revision before a Chamber impossible. That cannot have been the Court's intention in adopting paragraph 1 of Article 100 of the Rules. The fact remains, however, that it is in general the judges having rendered a judgment who are naturally in the best position to deal with a request for the revision of that judgment. It follows that the composition of a Chamber charged with dealing with a request for revision should be as similar as the circumstances permit to that of the Chamber which rendered the judgment in question. This in my view is one way in which the term "that Chamber" in Article 100 might reasonably be interpreted.

3. In the present case, El Salvador recognizes in paragraph 167 of its Application that it is for

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the Court to constitute the Chamber charged with hearing it, in accordance with Article 26, paragraph 2, of the Statute, and Articles 17 and 18 of the Rules of Court. However, in paragraph 166 of the Application, El Salvador also quotes Article 100 of the Rules of Court, adding: "This application falls within that category, since the Judgment of 11 September 1992 was given by a Chamber." El Salvador requests the Court "[t]o proceed to form the Chamber that will hear the application for revision of the Judgment" and expressly asks it to "[bear] in mind the terms that El Salvador and Honduras agreed upon in the Special Agreement of 24 May 1986". … Since I am the only Member of the Court still sitting to have been a member of the Chamber which rendered the Judgment of 11 September 1992 in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) case, I ought in principle, in view of all of the foregoing, to be a member of the Chamber that the Court has just constituted to rule on the request for revision of that Judgment submitted by El Salvador.

4. I note that, under the terms of Article 17, paragraph 4, of the Rules of Court: "Members of a Chamber formed under this Article who have been replaced, in accordance with Article 13 of the Statute following the expiration of their terms of office, shall continue to sit in all phases of the case, whatever the stage it has then reached." Examination of El Salvador's request for revision could potentially continue over a relatively lengthy period, extending well beyond the end of my third full term at the Court. While I deeply appreciate the continuing confidence shown in me both by El Salvador (in its Application for revision) and by Honduras, it would be neither reasonable nor advisable in view of my health for me to remain in office for an indefinite period after 5 February 2003, the date on which my current term is due to expire. The time will have come after 27 full years in office at the Court for me honourably to take my leave at that date. Legal Consequences of the Construction of a Wall In the Occupied Palestinian Territory (Request for Advisory Opinion) Order of 30 January 2004

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[pp. 4-5] 1. Whereas on 31 December 2003 the Government of Israel addressed a letter to the Registrar of the Court, in which that Government referred to the composition of the Court for purposes of its Order of 19 December 2003, and observed (inter alia) that "a Member of the Court who has played a leading role in recent years in the very Emergency Special Session from which the advisory opinion request has now emerged" is participating in decisions in this case;

2. Whereas in that letter the Government of Israel stated further that "Resolution A/RES/ES–10/14 requesting the advisory opinion locates the request squarely in the context of the wider Arab–Israeli/Israeli–Palestinian dispute. The essentially contentious nature of the proceedings is also recognized by the Court’s invitation to Palestine to participate in the case. It is inappropriate for a Member of the Court to participate in decisions in a case in which he has previously played an active, official and public role as an advocate for a cause that is in contention in this case. Israel will be writing to the President of the Court separately on this matter pursuant to Article 34 (2) of the Rules of Court";

3. Whereas on 15 January 2004 the Government of Israel addressed a confidential letter to the President of the Court referring to Article 34, paragraph 2, of the Rules of Court, in which that Government identified Judge Elaraby as the Member of the Court referred to in the previous letter, and sought to bring to the attention of the President facts which that Government considered of possible relevance to the participation of Judge Elaraby in the case;

4. Whereas the Government of Israel referred in its confidential letter not only to Judge Elaraby’s participation in the Tenth Emergency Special Session of the General Assembly but also to his previous activities as principal Legal Adviser to the Egyptian Ministry of Foreign Affairs (1976–1978 and 1983–1987), and as Legal Adviser to the Egyptian Delegation to the Camp David Middle East Peace Conference of 1978, and his involvement in initiatives following the signing of the Israel–Egypt Peace Treaty in 1979, concerning the establishment of autonomy in the West Bank and the Gaza Strip;

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whereas the Government further cited the published report of an interview given by Judge Elaraby to an Egyptian newspaper in August 2001, which reports the views of Judge Elaraby on questions concerning Israel;

5. Whereas the letter from the Government of Israel concludes by contending that Judge Elaraby, both in his previous professional capacity and in his statements of opinion, has been actively engaged in opposition to Israel including on matters which go directly to aspects of the question now before the Court;

6. Whereas in the case concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) the Court ruled on objections, presented by the Government of South Africa under Article 17, paragraph 2, of the Statute, to the participation of three Members of the Court in the proceedings; whereas those objections were based "on statements made or other participation by the Members concerned, in their former capacity as representatives of their governments, in United Nations organs which were dealing with matters concerning South West Africa"; whereas the Court reached the conclusion that such activities did not attract the application of Article 17, paragraph 2 (I.C.J. Reports 1971, p. 18, para. 9);

7. Whereas Article 17, paragraph 2, of the Statute excludes a Member of the Court from participation in the decision of any case in which he has previously taken part "as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity";

8. Whereas however the activities of Judge Elaraby referred to in the letter of 15 January 2004 from the Government of Israel were performed in his capacity of a diplomatic representative of his country, most of them many years before the question of the construction of a wall in the occupied Palestinian territory, now submitted for advisory opinion, arose; whereas that question was not an issue in the Tenth Emergency Special Session of the General Assembly until after Judge Elaraby had

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ceased to participate in that Session as representative of Egypt; whereas in the newspaper interview of August 2001, Judge Elaraby expressed no opinion on the question put in the present case; whereas consequently Judge Elaraby could not be regarded as having "previously taken part" in the case in any capacity;

[p. 7 D.O. Buergenthal] 6. In principle, I share the Court’s opinion that Judge Elaraby’s prior activities, performed in the discharge of his diplomatic and governmental functions, do not fall within the scope of Article 17, paragraph 2, of the Statute of the Court so as to prevent his participation in these proceedings. This conclusion can be justified on the ground that these views were not Judge Elaraby’s personal views, but those of his Government whose instructions he was executing. The Court has in the past taken a similar position in 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. 18, para. 9). Although I can imagine circumstances where this general rule will not withstand closer scrutiny, I agree with the Court in applying it to the instant case.

[pp. 8-10 D.O. Buergenthal] 7. I part company with the Court’s conclusions, however, with regard to the interview Judge Elaraby gave in August of 2001, two months before his election to the Court, when he was no longer an official of his Government and hence spoke in his personal capacity. See Al–Ahram, Weekly Online, 16–22 August 2001, Issue No. 547.

8. That interview reads in part as follows: "Today, he [Judge Elaraby] is concerned about a tendency to play into Israel’s hands, and thus to marginalise the crux of the Arab Israeli conflict, which is the illegitimate occupation of territory. ‘It has long been very clear that Israel, to gain time, has consistently followed the policy known as "establishing new facts". This time factor, with respect to any country, is a tactical element [in negotiations], but for the Israelis it is a strategy.’ New facts and new problems are created on the ground in this manner, he explains, and the older, essential problems are forgotten. Grave violations of humanitarian law ensue: the atrocities perpetrated on Palestinian civilian populations, for instance, but also such acts as the recent occupation of the PNA’s headquarters. ‘I hate to say it’, Elaraby continues, ‘but you do not see the Palestinians, or any other Arab country today, presenting the issue thus when addressing the international

Fundamental Principles

565

community: Israel is occupying Palestinian territory, and the occupation itself is against international law. Israel has twice, in writing, with the whole world as witness, committed itself to the implementation of UN Security Council resolution 242 on the occupied territories: once at Camp David with Egypt [in 1978], and once in Oslo with the Palestinians [in 1993].’ Very recently, he adds, the Sharon government launched a new strategy, wreaking confusion and gaining time by describing territories Israel has already recognised as occupied as ‘disputed’. All these, explains Elaraby, ‘are attempts to confuse the issues and complicate any serious attempt to get Israel out of the occupied territories. You can negotiate security, which will be mutual for both parties, but you cannot negotiate whether to leave or not.’"

9. Article 17, paragraph 2, of the Statute of the Court reads as follows: "2. No Member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity."

10. It is clear, of course, that the language of Article 17, paragraph 2, does not apply in so many words to the views Judge Elaraby expressed in the above interview. That does not mean, however, that this provision sets out the exclusive basis for the disqualification of a judge of this Court. It refers to what would generally be considered to be the most egregious violations of judicial ethics were a judge falling into one of the categories therein enumerated to participate in a case. At the same time, Article 17, paragraph 2, reflects much broader conceptions of justice and fairness that must be observed by courts of law than this Court appears to acknowledge. Judicial ethics are not matters strictly of hard and fast rules – I doubt that they can ever be exhaustively defined – they are matters of perception and of sensibility to appearances that courts must continuously keep in mind to preserve their legitimacy.

11. A court of law must be free and, in my opinion, is required to consider whether one of its judges has expressed views or taken positions that create the impression that he will not be able to consider the issues raised in a case or advisory opinion in a fair and impartial manner, that is, that he may be deemed to have prejudged one or more of the issues bearing on the subject–matter of the dispute before the court. That is what is meant by the dictum that the fair

566

Fundamental Principles

and proper administration of justice requires that justice not only be done, but that it also be seen to be done. In my view, all courts of law must be guided by this principle, whether or not their statutes or other constitutive documents expressly require them to do so. That power and obligation is implicit in the very concept of a court of law charged with the fair and impartial administration of justice. To read them out of the reach of Article 17, paragraph 2, is neither legally justified nor is it wise judicial policy.

12. In paragraph 8 of this Order, the Court declares that "whereas in the newspaper interview of August 2001, Judge Elaraby expressed no opinion on the question put in the present case; whereas consequently Judge Elaraby could not be regarded as having ‘previously taken part’ in the case in any capacity".

13. What we have here is the most formalistic and narrow construction of Article 17, paragraph 2, imaginable, and one that is unwarranted on the facts of this case. It is technically true, of course, that Judge Elaraby did not express an opinion on the specific question that has been submitted to the Court by the General Assembly of the United Nations. But it is equally true that this question cannot be examined by the Court without taking account of the context of the Israeli/Palestinian conflict and the arguments that will have to be advanced by the interested parties in examining "The Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory". Many of these arguments will turn on the factual validity and credibility of assertions bearing directly on the specific question referred to the Court in this advisory opinion request. And when it comes to the validity and credibility of these arguments, what Judge Elaraby has to say in the part of the interview I quoted above, creates an appearance of bias that in my opinion requires the Court to preclude Judge Elaraby’s participation in these proceedings.

14. What I consider important in reaching the above conclusion is the appearance of bias. That, in my opinion, is what Article 17, paragraph 2, properly interpreted, is all about and what judicial ethics are all about. And that is why I dissent from this Order, even though I have no doubts whatsoever about the personal integrity of Judge Elaraby for whom I have the highest regard, not only as a valued colleague but also a good friend.

567

The Jurisdiction of the International Court of Justice 2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE 2.1. General Rules

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 485] 48. 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 Chorzów, 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.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 12-14] 26. The Court recalls that, according to its settled jurisprudence, its jurisdiction must be determined at the time that the act instituting proceedings was filed. Thus, if the Court has jurisdiction on the date the case is referred to it, it continues to do so regardless of subsequent events. Such events might lead to a finding that an application has subsequently become moot and to a decision not to proceed to judgment on the merits, but they cannot deprive the Court of jurisdiction (see 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 (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 23–24, para. 38; and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United

568

The Jurisdiction of the International Court of Justice

States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 129, para. 37).

27. Article 36, paragraph 2, of the Statute of the Court provides: "The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a)

the interpretation of a treaty;

(b)

any question of international law;

(c)

the existence of any fact which, if established, would constitute a breach of an international obligation;

(d)

the nature or extent of the reparation to be made for the breach of an international obligation."

On 17 October 2000, the date that the Congo’s Application instituting these proceedings was filed, each of the Parties was bound by a declaration of acceptance of compulsory jurisdiction, filed in accordance with the above provision: Belgium by a declaration of 17 June 1958 and the Congo by a declaration of 8 February 1989. Those declarations contained no reservation applicable to the present case. Moreover, it is not contested by the Parties that at the material time there was a legal dispute between them concerning the international lawfulness of the arrest warrant of 11 April 2000 and the consequences to be drawn if the warrant was unlawful. Such a dispute was clearly a legal dispute within the meaning of the Court’s jurisprudence, namely "a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons" in which "the claim of one party is positively opposed by the other" (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; and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United

The Jurisdiction of the International Court of Justice

569

States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 122– 123, para. 21).

28. The Court accordingly concludes that at the time that it was seised of the case it had jurisdiction to deal with it, and that it still has such jurisdiction.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004 [pp. 332-334 J.Decl. Ranjeva, Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal, Elaraby] 8. Based on different reasoning, the Court has now confirmed that it lacks jurisdiction to entertain the claims presented by Serbia and Montenegro. It began by finding that Serbia and Montenegro, on 29 April 1999, was not a Member of the United Nations and not a party to the Statute. It concluded therefrom that the Court was not open to Serbia and Montenegro under Article 35, paragraph 1, of the Statute. Moreover, the Court considered that Article 35, paragraph 2, of the Statute enabled States not parties to the Statute to appear before the Court only by virtue of treaties concluded prior to the entry into force of the Statute. It observed that the Genocide Convention entered into force at a later date, on 12 January 1951. It thus concluded that Article 35, paragraph 2, did not grant Serbia and Montenegro access to the Court under Article IX of the Convention. Accordingly, the Court was not called upon to decide "whether Serbia and Montenegro was or was not a party to the Genocide Convention" when the Applications were filed. In any event, the Court was, once again, not open to Serbia and Montenegro. In sum, and contrary to its position in 1999, the Court has thus preferred to rule on its jurisdiction ratione personae, without even examining the questions of jurisdiction ratione temporis and ratione materiae on which it had previously pronounced prima facie.

9. This change of position is all the more surprising as the reasoning now adopted by the Court is at odds with judgments or orders previously rendered by the Court.

10. We would first observe that the question whether Yugoslavia was a Member of the United Nations and as such a party to the Statute between 1992 and 2000, remained a subject of debate during that period. The Court declined to settle the issue, both in 1993 (Application of

570

The Jurisdiction of the International Court of Justice

the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina

v.

Yugoslavia

(Serbia

and

Montenegro)),

Provisional

Measures,

I.C.J. Reports 1993, p. 14, para. 18), and in 1999 when issuing its Order on Provisional Measures (Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 136, para. 33). It then confined itself to stating that the solution adopted in this respect by Security Council resolution 757 and General Assembly resolution 47/1 was "not free from legal difficulties" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, I.C.J. Reports 1993, p. 14, para. 18). Subsequent to the admission of Serbia and Montenegro to the United Nations on 1 November 2000, the Court had to consider the question whether that admission clarified the previous position. The Court then found, in its Judgment of 3 February 2003, that "resolution 47/1 did not inter alia affect the Federal Republic of Yugoslavia’s right to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute" (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), I.C.J. Reports 2003, p. 31, para. 70). The Court added that "General Assembly resolution 55/12 of 1 November 2000 cannot have changed retroactively the sui generis position which the Federal Republic of Yugoslavia found itself in vis-à-vis the United Nations over the period 1992 to 2000, or its position in relation to the Statute of the Court" (ibid., para. 71). The Court thus previously found in 2003 that the Federal Republic of Yugoslavia could appear before the Court between 1992 and 2000 and that this position was not changed by its admission to the United Nations in 2002.

11. Further, the interpretation given in the present Judgment of Article 35, paragraph 2, of the Statute also appears to us to be at odds with the position previously adopted by the Court in its Order of 8 April 1993, where it considered 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

The Jurisdiction of the International Court of Justice

571

independently of the conditions laid down by the Security Council in its resolution 9 of 1946" (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. 14, para. 19). It is moreover astonishing that the Court found it necessary to rule on the scope of Article 35, paragraph 2, whereas the Applicant did not invoke this text.

12. Turning to the second criterion that the Court should apply in selecting between alternative grounds for its decision − that of certitude − we also find this not to be reflected in the ground chosen by the Court today. Nothing has occurred, in the series of cases concerning Kosovo, since the Court’s last judgment in 2003, to suggest that the grounds previously chosen have now lost legal credibility. Further, the grounds today selected by the Court are less certain than others open to it. The Court has determined that the admission of the Applicant to the United Nations in November 2000 "did not have and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared" (para. 78). The Court has also stated that "the significance of this new development in 2000 is that it has clarified the thus far amorphous legal situation concerning the status of the Federal Republic of Yugoslavia vis-à-vis the United Nations" (para. 79). Without specifying whether this "clarification" refers to the period 1992-2000, the Court asserts that it has now become "clear that the sui generis position of the Applicant could not have amounted to its membership in the Organization". We find this proposition far from selfevident and we cannot trace the steps of the reasoning. Such grounds seem to us to be less legally compelling and therefore less certain, and more open to different points of view, than the grounds relied upon by the Court thus far and which are now set aside by the Court.

13. We have referred also to the care that the Court must have, in selecting one among several possible grounds for a decision on jurisdiction, for the implications and possible consequences for other cases. In that sense, we believe that paragraph 40 of the Judgment does not adequately reflect the proper role of the Court as a judicial institution. The Judgment thus goes back on decisions previously adopted by the Court, whereas it was free to choose the ground upon which to base them and was under no obligation to rule in the present case on its jurisdiction ratione personae. Moreover, this approach appears to leave some doubt as to whether Yugoslavia was a party, between 1992 and 2000, to the United Nations Genocide

572

The Jurisdiction of the International Court of Justice

Convention. Such an approach could call into question the solutions adopted by the Court with respect to its jurisdiction in the case brought by Bosnia-Herzegovina against Serbia and Montenegro for the application of the Genocide Convention. We regret that the Court has decided to take such a direction.

[pp. 348-350 S.O. Kooijmans] 16. In its final submissions, Serbia and Montenegro asked the Court to "adjudge and declare on its jurisdiction ratione personae in the present cases" (CR 2004/23, p. 38). Such a request is highly unusual. Normally, the Applicant asks the Court to find that it has jurisdiction, not whether it has jurisdiction.

17. The first time that Serbia and Montenegro asked the Court to decide on its jurisdiction was when it submitted its Written Observations on the preliminary objections of the Respondents on 20 December 2002. In its Observations, Serbia and Montenegro summarily stated that, at the time of the filing of its Applications in 1999, it had neither been a party to the Statute nor to the Genocide Convention, thereby implying that the Court could not base its jurisdiction on either Article 36, paragraph 2, of the Statute or Article IX of the Genocide Convention, which were the bases of jurisdiction it had invoked in its 1999 Applications.

18. Serbia and Montenegro explicitly stated in a letter to the Court, dated 28 February 2003, that its Written Observations did not represent a notice of discontinuance, and reiterated its request to decide on the Court’s jurisdiction "considering the pleadings formulated in the Written Observations". What is striking − although perhaps not surprising in view of the litigation tactics of Serbia and Montenegro with regard to the various cases before the Court in which it is a party, as either applicant or respondent − is that these Observations did not in any way refer to an alternative basis of jurisdiction replacing the ones presented in 1999 but no longer maintained by the Applicant.

19. It was only during the oral pleadings that the Applicant raised the "key question" whether the sui generis position vis-à-vis the United Nations (mentioned by the Court in the Judgment in the Application for Revision case of 3 February 2003 and thus three weeks before the sending of the letter to the Court) could have provided the link between the new State and international treaties, in particular the Statute of the Court and the Genocide Convention. In this respect, it is noteworthy that the Agent for Serbia and Montenegro did not give any

The Jurisdiction of the International Court of Justice

573

suggestion as to how this could have happened. He merely stated that the question required a definitive answer and that only a decision of the Court could bring clarity. "A judgment on jurisdiction based on the elucidation of the position of the Federal Republic of Yugoslavia between 1992 and 2000 could create an anchor point of orientation" (CR 2004/14, pp. 26-27, paras 63-64; emphasis added).

20. Article 38, paragraph 2, of the Rules of Court states, inter alia, that "[t]he application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based" (emphasis added). The Applications of 29 April 1999 met this requirement by explicitly mentioning Article 36, paragraph 2, of the Statute and Article IX of the Genocide Convention (supplemented in the cases against Belgium and the Netherlands by letter of 12 May 1999, referring to compromissory clauses in two bilateral conventions of 1930 and 1931 respectively). In its Written Observations, filed on 20 December 2002, the Applicant abandoned these jurisdictional grounds as being pertinent at the date the Applications were filed without replacing them by another basis for the Court’s jurisdiction (the Observations were silent as regards the two bilateral treaties).

21. Therefore, Serbia and Montenegro’s Applications, as supplemented by its Written Observations of 20 December 2002, no longer meet the first requirement of Article 38, paragraph 2, of the Rules of Court. That fact in itself, however, does not provide the Court with a ground to remove the cases from the List. The provision that the Application shall specify the legal grounds of jurisdiction was included in 1936; in order to distinguish the requirements of paragraph 2 from those of paragraph 1, which were prescribed by the Statute itself, the words "as far as possible" were used (See G. Guyomar, Commentaire du Règlement de la CIJ, 1983, p. 234 ss.). In contrast to the requirements of paragraph 1, non-compliance with those of paragraph 2 does not lead eo ipso to non-admissibility. These requirements "were imposed on the Parties by the Court simply because they were helpful to it, but represented a mere recommendation” (ibid, p. 235 [translation by the Registry]). Likewise, Rosenne is of the view that "an application will not be rejected in limine only because such specification [of the jurisdictional grounds] is omitted" (The Law and Practice of the International Court 1920-1996, 1997, p. 705).

574

The Jurisdiction of the International Court of Justice

22. Serbia and Montenegro’s contention that only discontinuance in conformity with Articles 88 and 89 of the Rules of Court may yield a removal of a case from the List without a judgment on jurisdiction or on the merits (CR 2004/14, p. 18, para. 29) is, however, not correct. The fact that the Rules only speak of removing a case from the List by unilateral action of the applicant (Article 89) or joint action by the parties (Article 88) cannot deprive the Court of its inherent power, as master of its own procedure, to strike proprio motu a case from the List. This is also recognized by Rosenne who, in this respect, refers to the general powers of the Court under Articles 36 and 48 of the Statute (op. cit., p. 1478). This power is not related to the intention of the parties but to the judicial task of the Court. This is borne out by the Court’s reasoning in the Orders in the cases brought by the Federal Republic of Yugoslavia against Spain and the United States of America, where it said that "within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice" (case concerning Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, I.C.J. Reports 1999, p. 773, para. 35; emphasis added). Such power has to be used sparingly and only as an instrument of judicial policy to safeguard the integrity of the Court’s procedure. The present cases, however, are without precedent and can truly be called exceptional.

23. The Court was, in my opinion, perfectly entitled to issue such an order in the instant cases on the basis of the fact that the Applicant has not provided the Court with any plausible information as to the basis of its jurisdiction. It is not for the Court to ascertain in the preliminary phase of a case whether it has jurisdiction if the applicant fails to substantiate in any persuasive manner what the basis for that jurisdiction could be, and after it has explicitly admitted that the initial grounds it invoked are no longer valid. Nor is it the Court’s task to provide a party, which asks for the elucidation of an observation made by the Court in a judgment in another case to which it was also a party, with "an anchor point of orientation", as this would be tantamount to rendering an advisory opinion or giving an interpretation of a judgment in circumstances and under conditions not warranted by the Statute.

24. It is incompatible with the respect due to the Court for a party not to provide it with any substantive argument for the speculation that it might have jurisdiction while explicitly

The Jurisdiction of the International Court of Justice

575

withdrawing the previously adduced jurisdictional grounds. It is not in conformity with judicial propriety and a sound judicial policy to render a fully reasoned Judgment on jurisdiction when the Applicant bases its request to do so on grounds which can only be called inadequate. The Applicant can, therefore, be held to its statement that there are no recognized or generally accepted grounds of jurisdiction. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005 [pp. 346-347 S.O. Simma] 32. The jurisdiction of the Court being firmly established, there remains the issue of standing to raise violations of international humanitarian and human rights law in the case of persons who may not have the nationality of the claimant State. In the present case, regarding Uganda’s counter-claim, the issue does not present itself in a technical sense because Uganda has not actually pleaded a violation of either of these branches of international law in relation to the persons in question. But if Uganda had chosen to raise these violations before the Court, it would undoubtedly have had standing to bring such claims.

33. As to international humanitarian law, Uganda would have had standing because, as the Court emphasized in its Advisory Opinion on the Wall: "Article 1 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 under an obligation to ensure that the requirements of the instruments in question are complied with." (I.C.J. Reports 2004, pp. 199-200, para. 158.) The Court concluded that given the character and the importance of the rights and obligations involved, there is an obligation on all States parties to the Convention to respect and ensure respect for violations of the international humanitarian law codified in the Convention (ibid., p. 200, paras. 158-159). The same reasoning is applicable in the instant case. There cannot be any doubt that the obligation (not only to respect but also) to ensure respect for international

576

The Jurisdiction of the International Court of Justice

humanitarian law applies to the obligations enshrined both in common Article 3 and in Protocol I Additional to the Geneva Conventions.

34. The ICRC Commentary to common Article 1 of the Conventions arrives at the same result in its analysis of the obligation to respect and to ensure respect, where it is stated that: "in the event of a Power failing to fulfil its obligations [under the Convention], the other Contracting Parties (neutral, allied or enemy) may, and should, endeavour to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally."144 Thus, regardless of whether the maltreated individuals were Ugandans or not, Uganda had the right − indeed the duty − to raise the violations of international humanitarian law committed against the private persons at the airport. The implementation of a State party’s international legal duty to ensure respect by another State party for the obligations arising under humanitarian treaties by way of raising it before the International Court of Justice is certainly one of the most constructive avenues in this regard.

[pp. 347-349 S.O. Simma] 35. As to the question of standing of a claimant State for violations of human rights committed against persons which might or might not possess the nationality of that State, the jurisdiction of the Court not being at issue, the contemporary law of State responsibility provides a positive answer as well. The International Law Commission’s 2001 draft on Responsibility of States for Internationally Wrongful Acts provides not only for the invocation of responsibility by an injured State (which quality Uganda would possess if it had been able to establish the Ugandan nationality of the individuals at the airport) but also for the possibility that such responsibility can be invoked by a State other than an injured State. In this regard, Article 48 of the draft reads as follows: "Article 48 Invocation of responsibility by a State other than an injured State

144

Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, J.S. Pictet (ed.), Geneva, 1958, p. 16.

The Jurisdiction of the International Court of Justice

577

1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole.

2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.

3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1."145 The obligations deriving from the human rights treaties cited above and breached by the DRC are instances par excellence of obligations that are owed to a group of States including Uganda, and are established for the protection of a collective interest of the States parties to the Covenant.

36. With regard to the customary requirement of the exhaustion of local remedies, this condition only applies if effective remedies are available in the first place (cf. ILC Article 44 (b) and the commentary thereto). In view of the circumstances of the airport incident and, more generally, of the political situation prevailing in the DRC at the time of the Ugandan invasion, I tend to agree with the Ugandan argument that attempts by the victims of that incident to seek justice in the Congolese courts would have remained futile (cf. para. 317 of the Judgment). Hence, no obstacle would have stood in the way for Uganda to raise the violation of human rights of the persons maltreated at Ndjili International Airport, even if these individuals did not possess its nationality.

145

Report of the ILC on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth Session, Suppl. No. 10 (A/56/10), p. 56.

578

The Jurisdiction of the International Court of Justice

37. In summary of this issue, Uganda would have had standing to bring, and the Court would have had jurisdiction to decide upon a claim both under international humanitarian law and international human rights law for the maltreatment of the individuals at the airport, irrespective of the nationality of these individuals. The specific construction of the rights and obligations under the Fourth Geneva Convention as well as the relevant provisions of Protocol I Additional to this Convention not only entitles every State party to raise these violations but even creates an obligation to ensure respect for the humanitarian law in question. The rules of the international law of State responsibility lead to an analogous result as concerns the violations of human rights of the persons concerned by the Congolese soldiers. Uganda chose the avenue of diplomatic protection and failed. A reminder by the Court of the applicability of international humanitarian and human rights law standards and of Uganda’s standing to raise violations of the obligations deriving from these standards by the DRC would, in my view, not have gone ultra petita partium.

2.2. Conditions for a Decision on the Merits 2.2.1. Exhaustion of Local Remedies

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 487-488] 58. The United States argues further that Germany's first submission, as far as it concerns its right to exercise diplomatic protection with respect to its nationals, is inadmissible on the ground that the LaGrands did not exhaust local remedies. The United States maintains that the alleged breach concerned the duty to inform the LaGrands of their right to consular access, and that such a breach could have been remedied at the trial stage, provided it was raised in a timely fashion. The United States contends that when a person fails, for example, to sue in a national court before a statute of limitations has expired, the claim is both procedurally barred in national courts and inadmissible in international tribunals for failure to exhaust local remedies. It adds that the failure of counsel for the LaGrands to raise the breach of the Vienna Convention at the appropriate stage and time of the proceedings does not excuse the

The Jurisdiction of the International Court of Justice

579

non–exhaustion of local remedies. According to the United States, this failure of counsel is imputable to their clients because the law treats defendants and their lawyers as a single entity in terms of their legal positions. Moreover, the State is not accountable for the errors or mistaken strategy by lawyers.

59. Germany responds that international law requires the exhaustion of only those remedies which are legally and practically available. Germany claims that in this case there was no remedy which the LaGrands failed to invoke that would have been available in the specific context of their case. This is so because, prior to 1992, the LaGrands could not resort to the available remedies, since they were unaware of their rights due to failure of the United States authorities to comply with the requirements of the Vienna Convention; thereafter, the "procedural default" rule prevented them from seeking any remedy.

60. 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.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 16-18] 37. The fourth Belgian objection reads as follows: "That, in the light of the new circumstances concerning Mr. Yerodia Ndombasi, the case has assumed the character of an action of diplomatic protection but one in which the individual being protected has failed to exhaust local remedies, and

580

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that the Court accordingly lacks jurisdiction in the case and/or that the application is inadmissible." ...

40. The Court notes that the Congo has never sought to invoke before it Mr. Yerodia’s personal rights. It considers that, despite the change in professional situation of Mr. Yerodia, the character of the dispute submitted to the Court by means of the Application has not changed: the dispute still concerns the lawfulness of the arrest warrant issued on 11 April 2000 against a person who was at the time Minister for Foreign Affairs of the Congo, and the question whether the rights of the Congo have or have not been violated by that warrant. As the Congo is not acting in the context of protection of one of its nationals, Belgium cannot rely upon the rules relating to the exhaustion of local remedies. In any event, the Court recalls that an objection based on non–exhaustion of local remedies relates to the admissibility of the application (see Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 26; Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 42, para. 49). Under settled jurisprudence, the critical date for determining the admissibility of an application is the date on which it is filed (see 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, pp. 25–26, paras. 43–44; and 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. 130–131, paras. 42–43). Belgium accepts that, on the date on which the Congo filed the Application instituting proceedings, the Congo had a direct legal interest in the matter, and was asserting a claim in its own name.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

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[pp. 35-36] 40. … The Court would first observe that the individual rights of Mexican nationals under subparagraph 1 (b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States. Only when that process is completed and local remedies are exhausted would Mexico be entitled to espouse the individual claims of its nationals through the procedure of diplomatic protection. In the present case Mexico does not, however, claim to be acting solely on that basis. It also asserts its own claims, basing them on the injury which it contends that it has itself suffered, directly and through its nationals, as a result of the violation by the United States of the obligations incumbent upon it under Article 36, paragraph 1 (a), (b) and (c). The Court would recall that, in the LaGrand case, it recognized that "Article 36, paragraph 1 [of the Vienna Convention], creates individual rights [for the national concerned], which ... may be invoked in this Court by the national State of the detained person" (I.C.J. Reports 2001, p. 494, para. 77). It would further observe that violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual. In these special circumstances of interdependence of the rights of the State and of individual rights, Mexico may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on Mexican nationals under Article 36, paragraph 1 (b). The duty to exhaust local remedies does not apply to such a request. Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection. Without needing to pronounce at this juncture on the issues raised by the procedural default rule, as explained by Mexico in paragraph 39 above, the Court accordingly finds that the second objection by the United States to admissibility cannot be upheld.

[pp. 77-78 Decl. Ranjeva] 8. … Traditionally, diplomatic protection is essentially an institution of general or customary intertnational law:

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9. In other words, the protection consists in the right of a State to bring an international claim against another State when one of its nationals has been injured by an internationally wrongful act. In light of the terms used by the Permanent Court of International Justice, there is one clear conclusion: diplomatic protection is a right belonging to the State. Hence, in matters concerning the protection of individual rights of nationals, the question is whether there is a place for diplomatic protection.

10. From a purely practical standpoint, reliance on the notion of diplomatic protection and the rule of the exhaustion of local remedies may have perverse effects: the procedural default rule can make compliance with the procedural obligation to exhaust local remedies a futile exercise; no one has yet found a way of bringing an executed prisoner back to life.

11. On a theoretical level, erading the provision of the Vienna Convention in conjunction with the reasoning in the LaGrand Judgment prompts the following observations: first, the 1963 Convention enumerates the rights that it seeks to protect for the purpose of facilitating the exercise of the consular function, for the benefit both of the sending State and of its nationals; secondly, the LaGrand Judgment describes the components of the consular protection system as being interrelated (I.C.J. Reports 2001, p. 492, para.74); and lastly, according to paragraph 77 of that Judgment: “ the Court concludes that Article 36, paragraph 1, 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” (I.C.J. Reports 2001, p. 494, para. 77).

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12. If I have undersdtood them correctly, those propositions contemplate the direct grant of individual rights but do not impose any prior condition for States to invoke violations of the rights of their nationals. Thus, looking beyond the scope of diplomatic protection and the obligation to exhaust local remedies, the question to be determined is the significance of the interrelationship between the components of the consular protection system.

13. The notion of interrelationship was used by the Court in 2001 to characaterize the interdependence of the rights enumerated in Article 36, paragraph 1. The raison d’être or focus of that relationship is to seek to facilitate consular protection. However, the manner in which the various rights are defined consists in stating their content and how they are to be apportioned as between the sending State and the detainee; in other words, the 1963 Convention sought to identify the holders of the rights that it created, with individual rights being those belonging to the detained nationals. In these circumstances, the interrelationship contemplated by the 2001 Judgment concerns neither the nature nor the scope of the rights in question; it pertains to the effective implementation of the protection system. The effective exercise by a State of its rights to provide for the protection of its nationals, who derive their rights from Article 36, paragraph 1 (b), is only possible if the detained national does not refuse such an initiative. The discretionary power of the sending State is thus confned to a right of initiative to activate the protection mechanism. And that right of initiative effectively arises “as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a forteign national” (Judgment, para. 88).

[pp. 82-83 S.O. Vereshchetin] 10. I share the view of the majority that Mexico’s claims are admissible and that the duty to exhaust local remedies does not apply to this case. However, my perception of the nature of the "special circumstances" in issue is quite different from that expounded in paragraph 40 of the Judgment. In my view, the special circumstances that, for the purposes of this Judgment, exempt this particular case from the local remedies requirement do not lie in the special character of Article 36 of the Vienna Convention, but rather in the particular factual circumstances of the specific case before the Court, as will be explained further below. Contrary to what the Court says in paragraph 40 of the Judgment, in invoking the rights of individuals under the Vienna Convention before this Court, the State, as a general rule, is not exempt from the duty to exhaust local remedies, subject to certain

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exceptions as those specified in Article 10 [14] of the ILC Draft. As the ELSI Chamber observed with regard to this rule, such "an important principle of customary international law" would not be held to have been "tacitly dispensed with, in the absence of any words making clear an intention to do so" (Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 42, para. 50).

11. The individual rights of Mexican nationals under paragraph 1 (b) of Article 36 of the Vienna Convention are, indeed, rights "which are to be asserted, at any rate in the first place, within the domestic legal system of the United States" (para. 40 of the Judgment). In principle, only when that process is completed and the remedies for the violations are finally unavailable, could Mexico take up the case in the form of an espousal of individual claims before this Court. However, the LaGrand case showed that the wide range of possible local remedies in criminal justice procedures in the United States tend to be exhausted only a short time before the execution of individuals under sentence of death. In consequence, there is a risk that applications based on diplomatic protection with regard to such individuals will be filed with this Court in circumstances where the latter would be unable usefully to address them.

12. In the special circumstances of the present case, at the time when the Application was filed, all the Mexican nationals concerned were already on death row and therefore human lives were at stake. In these circumstances, to demand that all the local remedies for the alleged violation of Article 36, paragraph 1, should have been completely exhausted before Mexico could exercise its right of diplomatic protection of these nationals, could lead to the absurd result of this Court having to rule at a point in time when its ruling could have no practical effect. That is why, exactly because most of the cases in question had not yet reached the final stage in the United States criminal proceedings, and in the hope that this Court would clarify the matter from the standpoint of international law, Mexico could bring its claims both in its own right and in the exercise of its right of diplomatic protection of its nationals.

13. To conclude, the Court should have applied the "preponderance" standard to the "mixed" Mexican claims brought under the heads both of Mexico’s own rights and of its right of diplomatic protection of its nationals, thus remaining consistent with its former jurisprudence on the law of diplomatic protection. Having found that the claims were essentially those of

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diplomatic protection, the Court should have held that the rule of exhaustion of local remedies was inapplicable not because Article 36 of the Vienna Convention on Consular Relations impliedly differs in kind from other treaty provisions creating rights of individuals, but rather because of the very special circumstances of the case at hand, as explained above. [pp. 89-91 S.O. Parra–Aranguren] 20. Paragraph 40 of the Judgment concludes: "The duty to exhaust local remedies does not apply to such a request. Further, for reasons just explained, the Court does not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection. Without needing to pronounce at this juncture on the issues raised by the procedural default rule, as explained by Mexico in paragraph 39 above, the Court accordingly finds that the second objection by the United States to admissibility cannot be upheld."

21. In my opinion, this conclusion is misleading. Paragraph 40 should have stated that the local remedies requirement does not apply when the injury is claimed to have been done directly to the rights of Mexico and not that it is not applicable to the claim made by Mexico in its own name. Now, the claims presented by Mexico in the exercise of diplomatic protection of its nationals are claims of Mexico in its own right, as was acknowledged in the well–known dictum of the 30 August 1924 Judgment of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case, where it was specified that "By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law." (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 12.)

22. This principle is generally accepted and has recently been reproduced in Article 1, paragraph 1, of the Draft Articles on Diplomatic Protection prepared by the International Law Commission, indicating that: "Diplomatic protection consists of resort to diplomatic action or other means of peaceful settlement by a State adopting in its own right the cause of its national in respect of an injury to that national arising from an internationally wrongful act of another State."

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23. Therefore, in the present case, the relevant element in deciding whether local remedies had to be exhausted is whether Mexico was directly injured by the actions of the United States. As the International Law Commission explains "The exhaustion of local remedies rule applies only to cases in which the claimant State has been injured ‘indirectly’, that is, through its national. It does not apply where the claimant State is directly injured by the wrongful act of another State, as here the State has a distinct reason of its own for bringing an international claim."

24. Consequently Article 9 of its Draft Articles on Diplomatic Protection provides that "[l]ocal remedies shall be exhausted where an international claim, or request for a declaratory judgment related to the claim, is brought preponderantly on the basis of an injury to a national or other person referred to in article 7 [8]."

25. However the International Law Commission also observes that "In practice it is difficult to decide whether the claim is ‘direct’ or ‘indirect’ where it is ‘mixed’, in the sense that it contains elements of both injury to the State and injury to the nationals of the State ... In the case of a mixed claim it is incumbent upon the tribunal to examine the different elements of the claim and to decide whether the direct or the indirect element is preponderant ... Closely related to the preponderance test is the sine qua non or ‘but for’ test, which asks whether the claim comprising elements of both direct and indirect injury would have been brought were it not for the claim on behalf of the injured national. If this question is answered negatively, the claim is an indirect one and local remedies must be exhausted. There is, however, little to distinguish the preponderance test from the ‘but for’ test. If a claim is preponderantly based on injury to a national this is evidence of the fact that the claim would not have been brought but for the injury to the national. In these circumstances the Commission preferred to adopt one test only - that of preponderance." (United Nations, Report of the International Law Commission, Fifty–Fifth Session (5 May–6 June and 7 July–8 August 2003), Official Records of the General Assembly, Fifty–Eighth Session, Supplement No. 10 (A/58/10), pp. 89–90).

26. In the present case Mexico has advanced, in its own right, a claim against the United States. However, the application of the exhaustion of local remedies rule depends not on

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whether Mexico presents the claim in its own right, but on whether Mexico was directly injured by the alleged actions of the United States.

27. Mexico maintains that there was a breach by the United States of the Vienna Convention, an unlawful act in the relations between the two States, on each occasion the United States authorities did not inform the Mexican nationals arrested of their rights under Article 36, paragraph 1 (b). Consequently, Mexico’s claim is a "mixed" claim, to use the terminology of the International Law Commission, as recognized in paragraph 40 of the Judgment where it is stated that there are "special circumstances of interdependence of the rights of the State and of individual rights". Therefore, it was for the Court to determine whether Mexico’s claim was preponderantly based on injury to a national and would not have been brought but for the injury to its national.

28. In my opinion, Mexico would not have presented its claim against the United States but for the injury suffered by its nationals. Consequently the local remedies rule applies to the claims "in its own right" submitted by Mexico in its first final submission and therefore the Court should have examined each of the individual cases to determine whether the local remedies had been exhausted, which do not include "approach to the executive for relief in the exercise of its discretionary powers ... remedies as of grace or those whose ‘purpose is to obtain a favour and not to vindicate a right’". If that was not case, the claims presented by Mexico in the exercise of diplomatic protection of its nationals were to be dismissed, unless covered by any of the customarily accepted exceptions to the local remedies rule, taking into consideration Article 10 of the Draft Articles on Diplomatic Protection prepared by the International Law Commission (United Nations, Report of the International Law Commission, Fifty–Fifth Session (5 May–6 June and 7 July–8 August 2003), Official Records of the General Assembly, Fifty–Eighth Session, Supplement No. 10 (A/58/10), pp. 88, 92–102). Therefore, it is not possible for me to agree with the conclusion reached in paragraph 40 of the Judgment.

[pp. 95-97 S.O. Tomka] 6. In order to be able to rule on the alleged violations by the United States of its obligations to the Mexican nationals under Artcile 36, paragraph 1, of the Vienna Convention, the Court relies on what is in my view a novel doctrine, without citing any prior jurisprudence in support thereof. The Court explains that, in the special circumstances of

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interpedendence of the rights of the State and of individual rights, the State (in this case Mexico) may, in submitting a claim in its own name, request the Court to rule on the violation of rights which it claims to have suffered both directly and through the violation of individual rights conferred on its nationals under Article 36, paragraph 1 (b).

7. In the present case, in my view, the Court could only reach the conclusion that the individual rights of Mexican nationals had been violated if it accepted Mexico’s claim that that State was exercising its right to diplomatic protection. In order for a violation of individual rights (the rights of individual nationals), to be established, such rights have to be pleaded before an international court. When a State invokes the rights of its nationals, it acts in its own name on their behalf, on account of the wrong done to them: in other words, that State exercises displomatic protection. Mexico’s main reason for bringing the case before the Court was the alleged wrong done to its nationals. It is its nationals – and their fate – with which Mexico is primarily concerned. In order to give them a final chance within the United States judicial system, it was vital to establish violations by the United States of its obligations to Mexican nationals under the Vienna Convention, and the resultant injury to them. In my view, it is the violation of the rights of an individual and the wrong done to that individual, rather than the violation of a right of Mexico and the resultant injury to that State, that may have a certain role to play in the context of criminal proceedings in the United States.

8. If this case is viewed in the context of diplomatic protection, we cannot simply ignore the United States objection that the Mexican nationals have failed to exhaust local remedies.

9. …

10. The International Law Commission, which is currently preparing draft articles on diplomatic protection, has framed four exceptions to the local remedies rule. Only the first of these concerns us here. Under this exception, there is no need to exhaust local remedies when they provide no reasonable possibility of effective redress. It is for the claimant to prove “that in the circumstances of the case, and having regard to the legal system of the respondent State, there is no reasonable possibility of an effective redress” (Report of the International Law Commission, 2003, United Nations doc. A/58/10, p. 93, para. 3).

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11. Mexico claims that no single court in the United States has ever granted a judicial remedy for a violation of Article 36 of the Vienna Convention.

12. Although the United States maintains that almost all of the 52 cases put in issue by Mexico before the Court (save for three, leaving 49) remain pending, many of them not yet having gone beyond the first direct appeal of the conviction, it has on the other hand failed to refute Mexico’s criticism of the practice of the United States courts of consistently refusing any form of relief for the violation of an obligation under Article 36 of the Vienna Convention.

13. It would thus have been possible for the Court to conclude that Mexico has shown that the condition of exhaustion of local remedies did not apply in the present case to its claim under the head of diplomatic protection.

[pp. 106-107 S.O. Sepúlveda] 22. It is believed that the Court, in response to Mexico’s submission, should have recognized, as a matter of its right to exercise diplomatic protection, the espousal by Mexico at the international level of the claims of the 52 Mexican nationals whose individual rights have been denied, amounting to the denial of justice through the judicial process of the United States. Such a recognition would have been particularly relevant in the cases of Mr. Fierro Reyna, Mr. Moreno Ramos and Mr. Torres Aguilera, three cases in which all judicial remedies have been exhausted. But the right of diplomatic protection of Mexico is also valid in the case of the other 49 Mexican nationals, since the application of the doctrine of procedural default by United States courts means, for all practical purposes, that there are no remedies to exhaust, and that the futility rule becomes fully operative, as will be explained later on.

23. Had the Court followed its previous jurisprudence and applied it in the present case, it would have been acting in line with the LaGrand Judgment, where the Court rejected the argument made by the United States that "the right of a State to provide consular assistance to nationals detained in another country, and the right of a State to espouse the laws of its nationals through diplomatic protection, are legally different concepts" (LaGrand, Judgment, I.C.J. Reports 2001, p. 493, para. 76). The Court also rejected in LaGrand the contention of

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the United States that "rights of consular notification and access under the Vienna Convention are rights of States, and not of individuals, even though these rights may benefit individuals by permitting States to offer them consular assistance" (ibid.). One would have thought that these claims by the United States were put to rest, definitively and convincingly by the Court when it stated that: "the Court concludes that Article 36, paragraph 1, 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, Judgment, I.C.J. Reports 2001, p. 494, para. 77.)

24. If individual rights were violated in the LaGrand case, and if individual rights are being violated in the present case, then it follows from these premises that there is only one legal, obvious and necessary conclusion: that the individual rights of the 52 Mexican nationals may be invoked in this Court by Mexico. A contrary conclusion is incompatible with the decision of the Court in the LaGrand Judgment.

Case Concerning Certain Property (Liechtenstein v. Germany) Preliminary Objections Judgment of 10 February 2005 [pp. 38-39 D.O. Kooijmans] 37. Finally, Germany contends that Liechtenstein’s application is not admissible since the Liechtenstein nationals have not exhausted the available local remedies.

38. Liechtenstein’s Application contains a "mixed" claim, combining claims in its own right and also in the exercise of diplomatic protection of some of its citizens. In so far as this claim refers to the infringement of its sovereignty and neutral status, there is no requirement of the exhaustion of local remedies since that part of the claim is brought by the Applicant in its own right (Avena and Other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2004, p. 36, para. 40).

39. In so far as Liechtenstein’s claim is a claim in the exercise of diplomatic protection of its nationals, it can safely be maintained that the then Reigning Prince has exhausted all available

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local remedies, including an appeal to the European Court of Human Rights. Liechtenstein’s claim on his behalf is thus also admissible. With regard to the other Liechtenstein nationals, Liechtenstein submits that in their cases exhaustion of local remedies is not necessary, as these have already been shown to be futile in the case of the then Reigning Prince. That argument may sound persuasive, but it does not answer the underlying questions of why and on what ground the other Liechtenstein nationals could have been expected to seek redress from a German court. Unlike the Prince, whose former property − the Van Laer painting − was present on German territory, these other Liechtenstein nationals have no cause for action in the German courts, since their property never found itself within German national jurisdiction; and there is no decision against which they could have appealed.

40. That issue, however, is not an issue with regard to which the requirement of the exhaustion of local remedies is relevant. The question is simply whether Liechtenstein’s contention of a breach by Germany of its obligations vis-à-vis those other Liechtenstein nationals can pass legal scrutiny, but that is a matter for the merits, viz. whether Germany as a result of the decisions of its courts has breached an international obligation towards them.

41. Since Liechtenstein claims in its own right and also in the exercise of diplomatic protection on behalf of one of its citizens - the then Reigning Prince - who has exhausted all local remedies, Germany’s sixth preliminary objection has no merit.

2.2.2. Necessity of Diplomatic Negotiations

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 424] 244. The Court noted in its Judgment of 11 June 1998 (I.C.J. Reports 1998, p. 321, para. 107 and p. 322, para. 110) that negotiations between the Governments of Cameroon and Nigeria concerning the entire maritime delimitation – up to point G and beyond –were conducted as far back as the 1970s. These negotiations did not lead to an agreement. However, Articles 74 and 83 of the United Nations Law of the Sea

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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. 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.

245. As to negotiations with Equatorial Guinea and Sao Tome and Principe, the Court does not find that it follows from Articles 74 and 83 of the Law of the Sea Convention that the drawing of the maritime boundary between Cameroon and Nigeria presupposes that simultaneous negotiations between all four States involved have taken place. The Court is therefore in a position to proceed to the delimitation of the maritime boundary between Cameroon and Nigeria in so far as the rights of Equatorial Guinea and Sao Tome and Principe are not affected.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 210-211] 106. Iran maintains first that the Court cannot entertain the counter– claim of the United States because it was presented without any prior negotiation, and thus does not relate to a dispute "not satisfactorily adjusted by diplomacy" as contemplated by Article XXI, paragraph 2, of the 1955 Treaty, which reads as follows: "Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall

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be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means."

107. The Court cannot uphold this objection of Iran. It is established that a dispute has arisen between Iran and the United States over the issues raised in the counter–claim. The Court has to take note that the dispute has not been satisfactorily adjusted by diplomacy. Whether the fact that diplomatic negotiations have not been pursued is to be regarded as attributable to the conduct of the one Party or the other, is irrelevant for present purposes, as is the question whether it is the Applicant or the Respondent that has asserted a fin de non–recevoir on this ground. 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. *

2.2.3. Jurisdiction in Case of Continuing Negotiations between the Parties

2.2.4. Admissibility

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 483-484] 43. The United States does not challenge the Court's jurisdiction in regard to Germany's second submission. Nor does it as such address the issue of the jurisdiction of the Court over the third submission concerning the binding nature of the Order of the Court of 3 March 1999 indicating provisional measures. It argues, however, that this submission is inadmissible (see paragraphs 50 and 53–55 below), and that the Court can fully and adequately dispose of the merits of this case without having to rule on the submission.

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44. Germany asserts that the Court's Order of 3 March 1999 was intended to "enforce" the rights enjoyed by Germany under the Vienna Convention and "preserve those rights pending its decision on the merits". Germany claims that a dispute as to "whether the United States were obliged to comply and did comply with the Order" necessarily arises out of the interpretation or application of the Convention and thus falls within the jurisdiction of the Court. Germany argues further that questions "relating to the non–compliance with a decision of the Court under Article 41 para. 1 of the Statute, e.g. Provisional Measures, are an integral component of the entire original dispute between the parties". Moreover, Germany contends that its third submission also implicates "in an auxiliary and subsidiary manner ... the inherent jurisdiction of the Court for claims as closely interrelated with each other as the ones before the Court in the present case".

45. The third submission of Germany concerns issues that arise directly out of the dispute between the Parties before the Court over which the Court has already held that it has jurisdiction (see paragraph 42 above), and which are thus covered by Article I of the Optional Protocol. The Court reaffirms, in this connection, what it said in its Judgment in the Fisheries Jurisdiction case, where it declared that in order to consider the dispute in all its aspects, it may also deal with a submission that "is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject–matter of that Application. As such it falls within the scope of the Court's jurisdiction ..." (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). 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.

[pp. 485-486] 50. The United States objects first to Germany's second, third and fourth submissions. According to the United States, these submissions are inadmissible because Germany seeks to have this Court "play the role of ultimate court of appeal in national criminal proceedings", a role which it is not empowered to perform. The

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United States maintains that many of Germany's arguments, in particular those regarding the rule of "procedural default", ask the Court "to address and correct ... asserted violations of U.S. law and errors of judgment by U.S. judges" in criminal proceedings in national courts.

51. Germany denies that it requests the Court to act as an appellate criminal court, or that Germany's requests are in any way aimed at interfering with the administration of justice within the United States judicial system. It maintains that it is merely asking the Court to adjudge and declare that the conduct of the United States was inconsistent with its international legal obligations towards Germany under the Vienna Convention, and to draw from this failure certain legal consequences provided for in the international law of State responsibility.

52. The Court does not agree with these arguments of the United States concerning the admissibility of the second, third and fourth German submissions. In the second submission, Germany asks the Court to interpret the scope of Article 36, paragraph 2, of the Vienna Convention; the third submission seeks a finding that the United States violated an Order issued by this Court pursuant to Article 41 of its Statute; and in Germany's fourth submission, the Court is asked to determine the applicable remedies for the alleged violations of the Convention. 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, expressly mandated by Article 38 of its Statute, does not convert this Court into a court of appeal of national criminal proceedings.

53. The United States also argues that Germany's third submission is inadmissible because of the manner in which these proceedings were brought before the Court by Germany. It notes that German consular officials became aware of the LaGrands' cases in 1992, but that the German Government did not express concern or protest to the United States authorities for some six and a half years. It maintains that the issue of the

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absence of consular notification was not raised by Germany until 22 February 1999, two days before the date scheduled for Karl LaGrand's execution, in a letter from the German Foreign Minister to the Secretary of State of the United States (see paragraph 26 above). Germany then filed the Application instituting these proceedings, together with a request for provisional measures, after normal business hours in the Registry in the evening of 2 March 1999, some 27 hours before the execution of Walter LaGrand (see paragraph 30 above).

[p. 487] 57. 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.

[pp. 488-489] 61. The United States also contends that Germany's submissions are inadmissible on the ground that Germany seeks to have a standard applied to the United States that is different from its own practice. According to the United States, Germany has not shown that its system of criminal justice requires the annulment of criminal convictions where there has been a breach of the duty of consular notification; and that the practice of Germany in similar cases has been to do no more than offer an apology. The United States maintains that it would be contrary to basic principles of administration of justice and equality of the Parties to apply against the United States alleged rules that Germany appears not to accept for itself.

62. Germany denies that it is asking the United States to adhere to standards which Germany itself does not abide by; it maintains that its law and practice is fully in compliance with the standards which it invokes. In this regard, it explains that the German Code of Criminal Procedure provides a ground of appeal where a legal norm,

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including a norm of international law, is not applied or incorrectly applied and where there is a possibility that the decision was impaired by this fact.

63. The Court need not decide whether this argument of the United States, if true, would result in the inadmissibility of Germany's submissions. Here the evidence adduced by the United States does not justify the conclusion that Germany's own practice fails to conform to the standards it demands from the United States in this litigation. The United States relies on certain German cases to demonstrate that Germany has itself proffered only an apology for violating Article 36 of the Vienna Convention, and that State practice shows that this is the appropriate remedy for such a violation. But the cases concerned entailed relatively light criminal penalties and are not evidence as to German practice where an arrested person, who has not been informed without delay of his or her rights, is facing a severe penalty as in the present case. 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.

[p. 550 D.O. Buergenthal] 7. The Court issued its Order only four hours before the scheduled execution of Walter LaGrand, which was to take place in the State of Arizona. The United States authorities were thus left with very little time to assess and act upon the Order with the deliberateness its gravity required under American law and constitutional practice applicable to federal–state relations as well as under international law. It is to be observed, however, that the Court was presented by Germany with claims regarding a set of facts that called for immediate action to save the life of a human being who had allegedly been deprived of his rights under international law. In light of these circumstances, it is difficult to fault the Court for issuing the Order in the manner it did. But there is no excuse for Germany's conduct in waiting until the last minute to seek the Order. This is so particularly since it is now clear that the grounds Germany alleged in justification of its late filing do not withstand scrutiny. The

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late filing, as will be shown below, had serious negative consequences for the position of the United States in defending its rights before this Court. In my opinion, these circumstances now require the Court to hold the third submission inadmissible.

[pp. 554-555 D.O. Buergenthal] 19. I have no disagreement with the Court's view that given the imminence of "an irreparable harm" in the instant case it was "appropriate" to enter the Order of 3 March 1999 on the facts then known to the Court. But it does not follow therefrom, contrary to what the Court says, that "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". The fact that it was appropriate for the Court to issue the Order does not compel the admissibility of Germany's third submission once it is apparent that Germany's justification for its late filing is shown not to withstand scrutiny. It is to be regretted that the Court fails to address this issue since it bears directly on the admissibility of Germany's third submission.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[p. 34] 37. The first objection under this head is that "Mexico’s submissions should be found inadmissible because they seek to have this Court function as a court of criminal appeal"; there is, in the view of the United States, "no other apt characterization of Mexico’s two submissions in respect of remedies". The Court notes that this contention is addressed solely to the question of remedies. The United States does not contend on this ground that the Court should decline jurisdiction to enquire into the question of breaches of the Vienna Convention at all, but simply that, if such breaches are shown, the Court should do no more than decide that the United States must provide "review and reconsideration" along the lines indicated in the Judgment in the LaGrand case (I.C.J. Reports 2001, pp. 513–514, para. 125). The Court notes that this is a matter of merits. The first objection of the United States to admissibility cannot therefore be upheld.

[pp. 36-37] 41. The Court now turns to the question of the alleged dual nationality of certain of the Mexican nationals the subject of Mexico’s claims. This question is raised

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by the United States by way of an objection to the admissibility of those claims: the United States contends that in its Memorial Mexico had failed to establish that it may exercise diplomatic protection based on breaches of Mexico’s rights under the Vienna Convention with respect to those of its nationals who are also nationals of the United States. The United States regards it as an accepted principle that, when a person arrested or detained in the receiving State is a national of that State, then even if he is also a national of another State party to the Vienna Convention, Article 36 has no application, and the authorities of the receiving State are not required to proceed as laid down in that Article; and Mexico has indicated that, for the purposes of the present case it does not contest that dual nationals have no right to be advised of their rights under Article 36.

42. It has however to be recalled that Mexico, in addition to seeking to exercise diplomatic protection of its nationals, is making a claim in its own right on the basis of the alleged breaches by the United States of Article 36 of the Vienna Convention. Seen from this standpoint, the question of dual nationality is not one of admissibility, but of merits. A claim may be made by Mexico of breach of Article 36 of the Vienna Convention in relation to any of its nationals, and the United States is thereupon free to show that, because the person concerned was also a United States national, Article 36 had no application to that person, so that no breach of treaty obligations could have occurred. Furthermore, as regards the claim to exercise diplomatic protection, the question whether Mexico is entitled to protect a person having dual Mexican and United States nationality is subordinated to the question whether, in relation to such a person, the United States was under any obligation in terms of Article 36 of the Vienna Convention. It is thus in the course of its examination of the merits that the Court will have to consider whether the individuals concerned, or some of them, were dual nationals in law. Without prejudice to the outcome of such examination, the third objection of the United States to admissibility cannot therefore be upheld.

[pp. 37-38] 43. The Court now turns to the fourth objection advanced by the United States to the admissibility of Mexico’s claims: the contention that

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"The Court should not permit Mexico to pursue a claim against the United States with respect to any individual case where Mexico had actual knowledge of a breach of the [Vienna Convention] but failed to bring such breach to the attention of the United States or did so only after considerable delay." In the Counter–Memorial, the United States advances two considerations in support of this contention: that if the cases had been mentioned promptly, corrective action might have been possible; and that by inaction Mexico created an impression that it considered that the United States was meeting its obligations under the Convention, as Mexico understood them. At the hearings, the United States suggested that Mexico had in effect waived its right to claim in respect of the alleged breaches of the Convention, and to seek reparation.

44. As the Court observed in the case of Certain Phosphate Lands in Nauru (Nauru v. Australia), "delay on the part of a claimant State may render an application inadmissible", but "international law does not lay down any specific time–limit in that regard" (I.C.J. Reports 1992, pp. 253–254, para. 32). In that case the Court recognized that delay might prejudice the respondent State "with regard to both the establishment of the facts and the determination of the content of the applicable law" (ibid., p. 255, para. 36), but it has not been suggested that there is any such risk of prejudice in the present case. So far as inadmissibility might be based on an implied waiver of rights, the Court considers that only a much more prolonged and consistent inaction on the part of Mexico than any that the United States has alleged might be interpreted as implying such a waiver. Furthermore, Mexico indicated a number of ways in which it brought to the attention of the United States the breaches which it perceived of the Vienna Convention. The fourth objection of the United States to admissibility cannot therefore be upheld.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 265-267] 291. The Court has taken note that Uganda disagrees with the division of the first counter-claim of Uganda into three periods as argued by the DRC. The Court

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recalls that, in paragraph 39 of its Order on Counter-Claims of 29 November 2001, it considered that "the first counter-claim submitted by Uganda is ... directly connected, in regard to the entire period covered, with the subject-matter of the Congo’s claims". The DRC does not contest this finding, but rather argues that the first counter-claim is partially inadmissible and not founded as to the merits. The Court observes that its Order of 29 November 2001 does not deal with questions of admissibility outside the scope of Article 80 of the Rules, nor does it deal with the merits of the first counterclaim. Neither does the Order prejudge any question as to the possibility of dividing this counter-claim according to specific periods of time. The Court is not therefore precluded, if it is justified by the circumstances of the case, from considering the first counter-claim following specific time periods. In the present case, in view of the fact that the historical periods identified by the DRC indeed differ in their factual context and are clearly distinguishable, the Court does not see any obstacle to examining Uganda’s first counter-claim following these three periods of time and for practical purposes deems it useful to do so.

292. The Court now turns to the question of admissibility of the part of the first counter-claim of Uganda relating to the period prior to May 1997. The Court observes that the DRC has not presented any evidence showing an express renunciation by Uganda of its right to bring a counter-claim in relation to facts dating back to the Mobutu régime. Rather, it argues that Uganda’s subsequent conduct amounted to an implied waiver of whatever claims it might have had against the DRC as a result of the actions or inaction of the Mobutu régime.

293. 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

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Objections, Judgment, I.C.J. Reports 1992, pp. 247-250, paras. 12-21). Similarly, the International Law Commission, in its commentary on Article 45 of the Draft Articles on Responsibility of States for internationally wrongful acts, points out that "[a]lthough it may be possible to infer a waiver from the conduct of the States concerned or from a unilateral statement, the conduct or statement must be unequivocal" (ILC report, doc. A/56/10, 2001, p. 308). In the Court’s view, nothing in the conduct of Uganda in the period after May 1997 can be considered as implying an unequivocal waiver of its right to bring a counter-claim relating to events which occurred during the Mobutu régime.

294. The period of friendly relations enjoyed between the DRC and Uganda between May 1997 and July 1998 does nothing to affect this outcome. 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.

295. 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). In the circumstances of the present case, the long period of time between the events at stake during the Mobutu régime and the filing of Uganda’s counter-claims has not rendered inadmissible Uganda’s first counter-claim for the period prior to May 1997.

296. The Court accordingly finds that the DRC’s objection cannot be upheld.

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2.2.5. Simultaneous seizing of the Court and the Security Council/ Review of Security Council resolutions

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2.2.6. Mootness

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 14-15] 32. The Court has already affirmed on a number of occasions that events occurring subsequent to the filing of an application may render the application without object such that the Court is not called upon to give a decision thereon (see 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, para. 46; and 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. 131, para. 45). However, it considers that this is not such a case. The change which has occurred in the situation of Mr. Yerodia has not in fact put an end to the dispute between the Parties and has not deprived the Application of its object. The Congo argues that the arrest warrant issued by the Belgian judicial authorities against Mr. Yerodia was and remains unlawful. It asks the Court to hold that the warrant is unlawful, thus providing redress for the moral injury which the warrant allegedly caused to it. The Congo also continues to seek the cancellation of the warrant. For its part, Belgium contends that it did not act in violation of international law and it disputes the Congo’s submissions. In the view of the Court, it follows from the foregoing that the Application of the Congo is not now without object and that accordingly the case is not moot.

[pp. 184-185 D.O. Van den Wyngaert] 84. ...I was, however, more hesitant on the subject of mootness, where the Court held that the Congo’s Application was "not without object" (Judgment, para. 78 (1) (C)). It does not follow from Lockerbie that the question of mootness must be assessed on the date of the filing of the application146. An event subsequent to the

146

In the Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) case the Court only decided on the points of jurisdiction (ibid., Preliminary Objections, I.C.J. Reports

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filing of an application can still render a case moot. The question therefore was whether, given the fact that Mr. Yerodia is no longer a Foreign Minister today, there was still a case for the respondent State to answer. I think there was, for the following reason: it is not because an allegedly illegal act has ceased to continue in time that the illegality disappears. From that perspective, I think the case was not moot. This, however, is only true for the Congo’s first claim (a declaratory judgment solemnly declaring the illegality of Belgium’s act). However, I think the case might have been moot regarding the Congo’s second claim, given the fact that Mr. Yerodia is no longer a Minister today. If there was an infringement of international law in the year 2000 (which I do not think exists, for the reasons set out above), it has certainly ceased to exist today. Belgium’s alleged breach of an international obligation, if such an obligation existed - which I doubt - was in any event a breach of an obligation not of a continuing character. If the Court would take its own reasoning about immunities to its logical conclusion (the temporal linkage between the protection of immunities and the function of the Foreign Minister), then it should have reached the conclusion that the Congo’s third and fourth submissions should have been rejected.

* * *

2.3. The Optional Clause 2.3.1. General Questions

2.3.2. Transfer of Acceptances of the Compulsory Jurisdiction of

the Permanent Court of International Justice (Article 36, Paragraph 5, of the Statute of the International Court of Justice) * *

2.3.3. Reservations 2.3.4. Interpretation of a Declaration made under Article 36, Paragraph 2, of the Statute

*

2.3.5. Reciprocity

2.4. Jurisdiction on the Basis of a Special Agreement

Case Concerning Maritime Delimitation and Territorial 1998, p. 30, para. 53 (1)) and admissibility (ibid., para. 53 (2)), not on mootness (ibid., p. 31, para. 53 (3)). The ratio decidendi for paras. 53 (1) and (2) is that the relevant date for the assessment of both jurisdiction and admissibility is the date of the filing of the Application. The Court did not make such a statement in relation to mootness.

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Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[p. 77] 115. Since the 1939 decision did not constitute an international arbitral award, the Court will not need to consider Bahrain's argument concerning the Court's jurisdiction to examine the validity of arbitral awards. It will confine itself to noting that 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'" (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, pp. 126–127, para. 41, point 2).

116. The "Bahraini formula", as accepted by both Parties (see paragraph 67 above), is very comprehensive, since it authorizes the Parties to "request the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them". Consequently, the agreement between the Parties embraces all questions relating to the Hawar Islands, including the dispute concerning the 1939 British decision. Therefore the Court has jurisdiction to decide the various matters raised by Qatar in relation to the 1939 British decision.

Case Concerning the Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005

[p. 141] 119. Niger has also asked the Chamber to determine the frontier on the two bridges between Gaya (Niger) and Malanville (Benin). Benin contends that this issue is not covered by the dispute submitted to the Chamber under the terms of the Special Agreement and that the Chamber therefore has no jurisdiction to comply with Niger’s request.

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120. The Chamber notes in this regard that, in the Special Agreement, "[t]he Court is requested to ... determine the course of the boundary ... in the River Niger sector". Since the bridges between Gaya and Malanville are located in that sector, the Chamber considers that it has jurisdiction to determine where the boundary is located on these bridges.

2.5. Jurisdiction on the Basis of Treaties 2.5.1. General Questions

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001 [p. 528 D.O. Oda] 7. Suddenly, on 2 March 1999, Germany filed an "Application instituting proceedings ... for violations of the Vienna Convention on Consular Relations" (Application, introductory paragraph) in the Registry of the Court pursuant to the Statute of the Court, Article 40, paragraph 1, and the Rules of Court, Article 38, paragraph 1. It was at that point that the United States could have first discovered that it was involved in a "dispute" arising out of the interpretation or application of the Convention. It must have been very odd indeed for the United States to learn, only after proceedings had been brought against it, of the alleged existence of a "dispute". The United States was informed by the Application filed by Germany on 2 March 1999 that Germany was claiming violations by the United States of the Vienna Convention on Consular Relations. I am surprised that Germany unilaterally brought this case under such circumstances. More than 17 years had already passed since the LaGrand brothers committed the crimes in January 1982 and were arrested on the same day. Nearly 15 years had passed since the Arizona state court sentenced them to death. During this period, Germany had done nothing to indicate that it had claims against the United States for violation of the Vienna Convention and that there was an issue giving rise to a "dispute" between the two countries.

[p. 529 D.O. Oda] 10. I very much fear that the Court's acceptance of this Application presented unilaterally pursuant to the "optional clause" will in future lead States that have accepted the compulsory jurisdiction of the Court, either under Article 36, paragraph 2, of the

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Statute or under the Optional Protocol concerning the Compulsory Settlement of Disputes attached to multilateral treaties, to withdraw their acceptance of the Court's jurisdiction.

*

2.5.2. Transfer of Competences of the Permanent Court of International Justice (Article 37 of the Statute of the International Court of Justice)

2.5.3. Specific Treaties / Scope of Jurisdiction

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 480-481] 36. In relation to the jurisdiction of the Court, the United States, without having raised preliminary objections under Article 79 of the Rules of Court, nevertheless presented certain objections thereto. Germany bases the jurisdiction of the Court on Article I of the Optional Protocol, which reads as follows: "Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol." Germany contends that the "proceedings instituted by [it] in the present case raise questions of the interpretation and application of the Vienna Convention on Consular Relations and of the legal consequences arising from the non–observance on the part of the United States of certain of its provisions vis–à–vis Germany and two of its nationals". Accordingly, Germany states that all four of its submissions "are covered by one and the same jurisdictional basis, namely Art. I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963".

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37. The Court will first examine the question of its jurisdiction with respect to the first submission of Germany. Germany relies on paragraph 1 of Article 36 of the Vienna Convention, which provides: "With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action."

[pp. 482-483] 40. Concerning Germany's claims of violation of Article 36, paragraph 1 (a) and (c), the United States however calls these claims "particularly misplaced" on the grounds that the "underlying conduct complained of is the same" as the claim of the violation of Article 36, paragraph 1 (b). It contends, moreover, that "to the extent that this claim by Germany is based on the general law of diplomatic protection, it is not within the Court's jurisdiction" under the Optional Protocol because it "does not

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concern the interpretation or application of the Vienna Convention". The United States points to the distinction between jurisdiction over treaties and jurisdiction over customary law and observes that "[e]ven if a treaty norm and a customary norm were to have exactly the same content," each would have its "separate applicability". It contests the German assertion that diplomatic protection "enters through the intermediary of the Vienna Convention" and submits: "the Vienna Convention deals with consular assistance ... it does not deal with diplomatic protection. Legally, a world of difference exists between the right of the consul to assist an incarcerated national of his country, and the wholly different question whether the State can espouse the claims of its national through diplomatic protection. The former is within the jurisdiction of the Court under the Optional Protocol; the latter is not ... Germany based its right of diplomatic protection on customary law ... [T]his case comes before this Court not under Article 36, paragraph 2 of its Statute, but under Article 36, paragraph 1. Is it not obvious ... that whatever rights Germany has under customary law, they do not fall within the jurisdiction of this Court under the Optional Protocol?"

41. Germany responds that the breach of paragraph 1 (a) and (c) of Article 36 must be distinguished from that of paragraph 1 (b), and that as a result, the Court should not only rule on the latter breach, but also on the violation of paragraph 1 (a) and (c). Germany further asserts "that 'application of the Convention' in the sense of the Optional Protocol very well encompasses the consequences of a violation of individual rights under the Convention, including the espousal of respective claims by the State of nationality".

42. 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

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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.

[p. 483-484] 43. The United States does not challenge the Court's jurisdiction in regard to Germany's second submission. Nor does it as such address the issue of the jurisdiction of the Court over the third submission concerning the binding nature of the Order of the Court of 3 March 1999 indicating provisional measures. It argues, however, that this submission is inadmissible (see paragraphs 50 and 53–55 below), and that the Court can fully and adequately dispose of the merits of this case without having to rule on the submission.

44. Germany asserts that the Court's Order of 3 March 1999 was intended to "enforce" the rights enjoyed by Germany under the Vienna Convention and "preserve those rights pending its decision on the merits". Germany claims that a dispute as to "whether the United States were obliged to comply and did comply with the Order" necessarily arises out of the interpretation or application of the Convention and thus falls within the jurisdiction of the Court. Germany argues further that questions "relating to the non–compliance with a decision of the Court under Article 41 para. 1 of the Statute, e.g. Provisional Measures, are an integral component of the entire original dispute between the parties". Moreover, Germany contends that its third submission also implicates "in an auxiliary and subsidiary manner ... the inherent jurisdiction of the Court for claims as closely interrelated with each other as the ones before the Court in the present case".

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45. The third submission of Germany concerns issues that arise directly out of the dispute between the Parties before the Court over which the Court has already held that it has jurisdiction (see paragraph 42 above), and which are thus covered by Article I of the Optional Protocol. The Court reaffirms, in this connection, what it said in its Judgment in the Fisheries Jurisdiction case, where it declared that in order to consider the dispute in all its aspects, it may also deal with a submission that "is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject–matter of that Application. As such it falls within the scope of the Court's jurisdiction ..." (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). 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.

[pp. 484-485] 46. The United States objects to the jurisdiction of the Court over the fourth submission in so far as it concerns a request for assurances and guarantees of non–repetition. The United States submits that its "jurisdictional argument [does] not apply to jurisdiction to order cessation of a breach or to order reparation, but is limited to the question of assurances and guarantees ... [which] are conceptually distinct from reparation". It contends that Germany's fourth submission "goes beyond any remedy that the Court can or should grant, and should be rejected. The Court's power to decide cases ... does not extend to the power to order a State to provide any 'guarantee' intended to confer additional legal rights on the Applicant State ... The United States does not believe that it can be the role of the Court ... to impose any obligations that are additional to or that differ in character from those to which the United States consented when it ratified the Vienna Convention".

47. Germany counters this argument by asserting that

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"a dispute whether or not the violation of a provision of the Vienna Convention gives rise to a certain remedy is a dispute concerning 'the application and interpretation' of the aforesaid Convention, and thus falls within the scope of Art. I of the Optional Protocol". Germany notes in this regard that the Court, in its Order of 9 April 1998 in the case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), held that "there exists a dispute as to whether the relief sought by Paraguay is a remedy available under the Vienna Convention, in particular in relation to Articles 5 and 36 thereof; and ... this is a dispute arising out of the application of the Convention within the meaning of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes of 24 April 1963" (I.C.J. Reports 1998, p. 256, para. 31). Germany asserts also that its fourth submission arises under principles of State responsibility, according to which Germany is entitled to a "whole range of remedies" as a consequence of the particular violations alleged in this case and that these questions of State responsibility "are clearly within the ambit of the Optional Protocol".

48. 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 Chorzów, 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.

[p. 547 S.O. Parra–Aranguren] 14. The majority of the Court states: "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

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Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). These difficulties have been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute." (Para. 99 of the Judgment.)

15. As the Judgment acknowledges, the dispute between Germany and the United States on this point arises out of the interpretation of Article 41 of the Court's Statute. Therefore, it is not a dispute arising out of the interpretation of the Vienna Convention as required by the Optional Protocol, which is the basis for the jurisdiction of the Court in the present case. Consequently, in my opinion, the Court does not have jurisdiction to decide Germany's third submission. For this reason I have voted against operative paragraph 128 (1), (2) (c) and (5) of the Judgment.

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[p. 246] 73. Whereas the Congo further seeks to found the jurisdiction of the Court directly on Article 66, paragraph (a), of the 1969 Vienna Convention on the Law of Treaties, in accordance with which "[a]ny one of the parties to a dispute concerning the application or the interpretation of article 53 or 64", relating to conflicts between treaties and peremptory norms of international law, "may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration" (see paragraph 3 above);

74. Whereas Article 66 of the Vienna Convention on the Law of Treaties must be read in conjunction with Article 65, entitled "Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty";

75. Whereas the Congo does not maintain at the present time that there is a dispute, which could not be resolved under the procedure prescribed in Article 65 of the Vienna

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Convention, between it and Rwanda concerning a conflict between a treaty and a peremptory norm of international law; whereas the object of Article 66 cited above is not to allow for the substitution of the judicial settlement, arbitration and conciliation procedures under the Vienna Convention on the Law of Treaties for the settlement machinery for disputes relating to the interpretation or application of specific treaties, notably when a violation of those treaties has been alleged;

[p. 247-248] 80. Whereas the Congo seeks moreover to found the jurisdiction of the Court on Article 75 of the WHO Constitution, worded as follows: "Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement"; and whereas the Congo alleges that Rwanda has infringed the rights guaranteed to its population by Article 1 of that Constitution (see paragraph 27 above);

81. Whereas the Congo has been a party to the WHO Constitution since 24 February 1961 and Rwanda since 7 November 1962 and both are thus members of that Organization;

82. Whereas at this stage in the proceedings the Congo has also not shown that the preconditions on the seisin of the Court set by Article 75 of the WHO Constitution have been satisfied; whereas moreover an initial examination of that Constitution shows that Article 2 thereof, relied on by the Congo, places obligations on the Organization, not on the Member States;

83. Whereas the Congo further claims to found the jurisdiction of the Court on Article XIV, paragraph 2, of the Unesco Constitution, pursuant to which: "Any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice or to an

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arbitral tribunal, as the General Conference may determine under its rules of procedure"; whereas in its Application the Congo invokes Article I of the Constitution and maintains that "[o]wing to the war, the Democratic Republic of the Congo today is unable to fulfil its missions within Unesco ...";

84. Whereas both the Congo and Rwanda are parties to the Unesco Constitution and have been since 25 November 1960 in the case of the Congo and 7 November 1962 in the case of Rwanda;

85. Whereas Article XIV, paragraph 2, provides for the referral, under the conditions established in that provision, of disputes concerning the Unesco Constitution only in respect of the interpretation of that Constitution; whereas that does not appear to be the object of the Congo’s Application; and whereas the Application does not therefore appear to fall within the scope of that article;

[pp. 280-281 S.O. Mavungu] 29. The dispute between the Democratic Republic of the Congo and Rwanda concerns the application of the WHO Constitution in the case of alleged violations of the obligations thereunder. Article 75 lays down a prior condition before the Court can be seised: negotiation or the intervention of the Health Assembly. In oral argument, the Democratic Republic of the Congo, without providing any evidence therefor, informed the Court of various negotiations between the two Parties with a view to achieving a global settlement of the armed conflict on Congolese territory, including the organization of arbitration (CR 2002/38, pp. 10-11). Very possibly the discussions between the Congolese and the Rwandan authorities did not specially concern the obligation of their respective States under the WHO Constitution, but rather the upholding of human rights and of international humanitarian law, as well as the withdrawal of foreign troops from Congolese territory and the conditions for such withdrawal. The allegations by the Democratic Republic of the Congo concerning the violations of the right to health form part of the overall violations of human

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rights and of international humanitarian law. It may therefore be reasonably considered that the Parties attempted to settle the dispute by negotiation147.

30. When a jurisdiction clause provides for recourse to prior diplomatic negotiations, it is selfevident that the parties have to comply therewith. This requirement is rather an obligation of conduct than of result. In the light of the Court’s case law, it is for the Court itself to rule proprio motu on compliance or non-compliance with that obligation. The Court has moreover given a wide intepretation to the notion of diplomatic negotiations » (exchanges of view ; diplomatic notes, protests, disscussions within an international organization, talks)148.

31. The attitude of each Party during the prior negotiations is crucial in order to assess whether or not this requirement has been met: « Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches ; it may suffice that a discussion should have been commenced, and this discussion may have been very short ; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation. » (Mavrommatis Jerusalem Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 13.)

32. Article 75 of the Constitution of the WHO provides that the dispute « shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement ». It was apparent from the Parties’ oral pleadings that the dispute was not capable of settlement by arbitration, nor could it be referred to the Court by a special agreement for judicial settlement. The only remaining option was seisin of the Court by an application instituting proceedings.

147

Concerning the legal value of the principle of recourse to prior diplomatic negotiations, see Georges Abi–Saab, Les exceptions préliminaires dans la procédure de la Cour internationale, Paris, Pedone, 1967, p. 125; Paul Guggenheim, Traité de droit international public, Vol. II, Genève, Georg, 1953, p. 148; Charles De Visscher, Aspects récents du droit procédural de la Cour internationale de Justice, 1966, p. 86; Jacques Soubeyrol, «La négociation diplomatique, élément du contentieux international», Revue générale de droit international public, Vol. 68, 1964, p. 323; Waldock, op. cit, p. 266.

148

See inter alia Right of Passage over Indian Territory, I.C.J. Reports 1960, p. 148–149; South West Africa, Preliminary Objections, I.C.J. Reports 1962, p. 344 et seq ; Border and Transborder Armed Actions (Nicaragua v. Honduras), I.C.J. Reports 1988, pp. 99 et seq.

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Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 181-183] 39. The question of the relationship between self–defence and Article XX, paragraph 1 (d), of the Treaty has been disputed between the Parties, in particular as regards the jurisdiction of the Court. The United States emphasizes that the Court’s jurisdiction in this case is limited, pursuant to Article XXI, paragraph 2, of the 1955 Treaty, to the interpretation and application of that Treaty, and does not extend directly to the determination of the legality of any action of either Party under general international law. It has contended that "the Court need not address the question of self–defence ... [T]he scope of the exemption provided by Article XX, paragraph 1 (d), is not limited to those actions that would also meet the standards for self–defence under customary international law and the United Nations Charter." It however does not contend that the Treaty exempts it, as between the parties, from the obligations of international law on the use of force, but simply that where a party justifies certain action on the basis of Article XX, paragraph 1 (d), that action has to be tested solely against the criteria of that Article, and the jurisdiction conferred on the Court by Article XXI, paragraph 2, of the Treaty goes no further than that.

40. In the view of the Court, the matter is one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (d). The question is whether the parties to the 1955 Treaty, when providing therein that it should "not preclude the application of measures ... necessary to protect [the] essential security interests" of either party, intended that such should be the effect of the Treaty even where those measures involved a use of armed force; and if so, whether they contemplated, or assumed, a limitation that such use would have to comply with the conditions laid down by international law. 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

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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.). This approach is consistent with the view that, when Article XX, paragraph 1 (d), is invoked to justify actions involving the use of armed force, allegedly in self–defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self–defence under international law.

41. It should not be overlooked that Article I of the 1955 Treaty, quoted in paragraph 31 above, declares that "There shall be firm and enduring peace and sincere friendship between the United States of America and Iran." The Court found in 1996 that this Article "is such as to throw light on the interpretation of the other Treaty provisions" (I.C.J. Reports 1996 (II), p. 815, para. 31). It is hardly consistent with Article I to interpret Article XX, paragraph 1 (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" (Article 31, paragraph 3 (c)). The Court cannot accept that Article XX, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.

42. The Court is therefore satisfied that its jurisdiction under Article XXI, paragraph 2, of the 1955 Treaty to decide any question of interpretation or application of (inter alia) Article XX, paragraph 1 (d), of that Treaty extends, where appropriate, to the determination whether action alleged to be justified under that paragraph was or was not an unlawful use of force, by reference to international law applicable to this question,

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that is to say, the provisions of the Charter of the United Nations and customary international law. The Court would however emphasize that its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty. The Court is always conscious that it has jurisdiction only so far as conferred by the consent of the parties.

[pp. 252-254 S.O. Kooijmans] 20. … During the oral proceedings, counsel for the United States explicitly stated that "the jurisdiction of the Court is confined to the issue of whether the actions of the United States were necessary in order to protect its essential security interests; that jurisdiction [of the Court] does not extend to the issue of the legality of those actions in light of the rules governing the use of force and self–defence" (CR 2003/12, p. 26).

21. The Court has duly taken note of this position of the United States (para. 39 of the Judgment). It observes, however, that when a measure taken under Article XX, paragraph 1 (d), is invoked to justify actions involving the use of force, allegedly in self–defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self–defence under general international law and that, consequently, its jurisdiction extends to the determination whether action (under Article XX, paragraph 1 (d)) was or was not an unlawful use of force, by reference to the provisions of the United Nations Charter and customary international law. And the Court thoughtfully adds "that its jurisdiction remains limited to that conferred on it by Article XXI, paragraph 2, of the 1955 Treaty" (paras. 40 and 42 of the Judgment).

22. I seriously doubt, however, whether the Court has faithfully stuck to this declared intention. Already in the next paragraph the Court observes that in the present case the question whether measures taken under Article XX, paragraph 1 (d), were necessary overlaps with the question of their validity as acts of self–defence. And then the Court immediately cites the 1986 Nicaragua Judgment, where it said that the criteria of necessity and proportionality must be met if a measure is to be qualified as self–defence. That statement, however, was made in the context of the Court’s dealing with the dispute concerning the lawfulness of the use of force under customary international law as submitted to the Court under Article 36, paragraph 2, of the Statute. That does not mean that that statement is irrelevant for the interpretation of Article XX,

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paragraph 1 (d), but it seems to pave the way for a nearly exclusive consideration of the United States actions in the light of the right of self–defence under general international law. It can therefore come as no surprise when the Court says in paragraph 50 that it will "first concentrate on the facts tending to show the validity or otherwise of the claim to exercise the right of self– defence" (emphasis added).

23. But that is putting the shoe on the wrong foot. For this is not the claim before the Court, which has to decide whether the actions against the platform can be qualified as measures necessary to protect the United States security interests in the sense of Article XX, paragraph 1 (d), of the 1955 Treaty, not whether they were justified as measures taken in self–defence under international law. It can be readily admitted that if these measures involve the use of force, the rules of general international law become relevant for the question whether these measures can qualify as being "necessary". But that is something completely different from putting these measures directly to the test of the general rules of law on the use of force. The relationship is in my opinion aptly reflected in the decision of the Iran–United States Claims Tribunal in the Amoco International Finance case when it said with regard to the 1955 Treaty that "the rules of customary law may be useful ... to ascertain the meaning of undefined terms in its text or, more generally, to aid interpretation and implementation of its provisions" (15 Iran–U.S. CTR 189, p. 222, para. 112).

24. The Court, however, considers the United States actions nearly exclusively in the light of the right of self–defence and returns only at a rather late stage to the terms of Article XX, paragraph 1 (d) (para. 73 of the Judgment). In doing so, it takes as its point of departure the letters sent to the Security Council by the United States Permanent Representative after each of the two incidents, letters that were inevitably worded in Charter–language and most certainly would not have referred to Article XX, paragraph 1 (d), of the 1955 Treaty even if the United States had linked the actions against the platforms with that Treaty. It is these letters, from which the United States understandably did not distance itself in the present proceedings, which are constantly referred to as yardsticks for the evaluation of the conduct of the United States.

[pp. 276-278 S.O. Buergenthal] 16. … First, there is the Court’s reliance on the contention of the United States that, if the Court were to find that the measures taken by the United States

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satisfied the requirements of Article XX, paragraph 1 (d), it would have to dismiss the claim with regard to Article X, paragraph 1, whereas to rule in favour of Iran, it would have to find a violation of Article X, paragraph 1, and no valid defence under Article XX, paragraph 1 (d). That is all true, of course, but it is irrelevant to the issue of jurisdiction in this case, precisely because of the fact that Iran invoked the Court’s jurisdiction by charging a violation of Article X, paragraph 1. That was the sole issue ultimately to be determined unless and until the Court found that there had been a violation of that Article.

17. Second, by deciding to reverse the order and by taking up consideration first of Article XX, paragraph 1 (d), the Court did not overcome its lack of jurisdiction to make separate findings under that Article once it had concluded, whether before or after dealing with one or the other of these Articles, that Article X had not been violated. Here it should not be forgotten that in its Judgment on Preliminary Objections in the instant case, the Court found "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" (I.C.J. Reports 1996 (II), p. 821, para. 55 (2)). We are here therefore not dealing with a situation in which the Court, having acquired jurisdiction at the time an action was instituted, cannot be divested of that jurisdiction by later external events. (See, e.g., the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), I.C.J. Reports 1998, pp. 23–24, para. 38.) In the Lockerbie case, the external event was a later United Nations Security Council resolution. Similar external events came into play in the two other cases which are frequently cited as authority to uphold the proposition that jurisdiction once acquired is not divested by subsequent events. (See Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 123; and Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 142.) The matter was put as follows by the Court in the Nottebohm case, supra, where it said: "An extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established." But what we have in the present case is not an extrinsic fact or event but an event or fact intrinsic to the Judgment itself: the Court, by its own ruling under Article X, paragraph 1, of the 1955 Treaty has divested or deprived itself of jurisdiction to make independent findings with regard to Article XX, paragraph 1 (d).

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18. Finally, the Court’s reliance on the United States argument that Article XX, paragraph 1 (d), was a substantive provision and that its action satisfied the provisions of the Article is misplaced. The United States did not by that contention confer jurisdiction on the Court to make a separate finding as to whether the measures of the United States satisfied the requirements of Article XX, paragraph 1 (d), once the Court found that these measures did not violate Article X, paragraph 1, of the Treaty. In other words, the unstated implication in the Court’s argument that the United States by that proposition submitted itself to the Court’s jurisdiction is, in my view, simply untenable. This is certainly not a case of an implicit forum prorogatum, but a litigation argument in defence, advanced by the United States solely in case the Court were to find a violation of Article X, paragraph 1. (See Anglo–Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, I.C.J. Reports 1952, pp. 93–114.)

19. To put it bluntly, here the Court takes a giant intellectual leap lacking a valid judicial and jurisdictional basis that propels it improperly from an analysis of a Treaty provision – Article XX, paragraph 1 (d) – to a formal holding in the operative part of the Judgment that the Article provides no justification for the action of the United States, which action the Court declares in the same operative part not to constitute a violation of the very Article of the Treaty – Article X, paragraph 1 – that was the sole basis of Iran’s claim in this case. In this creative fashion the Court stigmatizes the actions of the United States as a breach of international law on the use of force without having the requisite jurisdiction to make such a ruling.

[pp. 278-279 S.O. Buergenthal] 21. The Court’s assertion that Article XX, paragraph 1 (d), must be interpreted by reference to international law on the use of force, leads it to conclude that, if it were to find that the action of the United States violated international law on the use of force, it would have to rule that such use of force cannot be justified under Article XX, paragraph 1 (d), of the 1955 Treaty. In reaching this conclusion, the Court relies principally on Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties and on Article I of the 1955 Treaty. Article 31, paragraph 3 (c), of the Convention provides that the interpretation of treaties must take into account "any relevant rules of international law applicable in the relations between the parties".

22. The problem with the Court’s reliance on this provision of the Vienna Convention is that, while

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the rule is sound and undisputed in principle as far as treaty interpretation is concerned, it cannot have the effect of allowing the Court to take account, as it does here, of those "relevant rules of international law applicable between the parties", which the parties to the dispute have not submitted to the Court’s jurisdiction under the dispute resolution clause of the 1955 Treaty. That is, the principles of customary international law and whatever other treaties the parties to a dispute before the Court may have concluded do not by virtue of Article 31, paragraph 3 (c), become subject to the Court’s jurisdiction. This is so whether or not they might be relevant in the abstract to the interpretation of a treaty with regard to which the Court has jurisdiction. Whether one likes it or not, that is the consequence of the fact that the Court’s jurisdiction, in resolving disputes between the parties before it, is limited to those rules of customary international law and to those treaties with regard to which the parties have accepted the Court’s jurisdiction. If it were otherwise, a State that has submitted itself to the Court’s jurisdiction for the interpretation of one treaty would suddenly find that it has opened itself up to judicial scrutiny with regard to other more or less relevant treaties between the parties to the dispute that are not covered by the dispute resolution clause of the treaty which conferred jurisdiction on the Court in the first place. This would be the natural consequence of the Court’s reliance in this case on Article 31, paragraph 3 (c), in order to interpret Article XX, paragraph 1 (d). Such a result would conflict with the consensual basis of the Court’s jurisdiction and would jeopardize the willingness of States to accept the Court’s jurisdiction for the adjudication of disputes relating to the interpretation or application of specific rules of international law.

[pp. 282-283 S.O. Buergenthal] 31. As a matter of fact, the Court’s extensive quotations from the arguments advanced by the United States in the United Nations Security Council with regard to the armed conflict in the Persian Gulf (see, e.g., paras. 48 and 67) prove, if proof were necessary, that the Court in this case is acting as if it had jurisdiction to judge the action of the United States in attacking the platforms by reference to specific provisions of the Charter of the United Nations or international law. It is much too easy and too transparent an attempt for the Court to gloss over this fact by claiming that "In the present case, the question whether the measures taken were 'necessary' overlaps with the question of their validity as acts of self–defence. 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 I.C.J. Reports 1986, p. 103, para. 194, and paragraph 74 below)." (Para. 43.)

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32. It is worth noting that the above quote from the Nicaragua case comes from that part of the Nicaragua Judgment in which the Court was exercising its jurisdiction under customary international law rather than the United States–Nicaragua Treaty of 1956. The Court’s failure to apply the language of Article XX, paragraph 1 (d), in its analysis of the evidence relating to the challenged United States measures and its focus, instead, on international law on the use of force has improperly transformed the case into a dispute relating to the use of force under international law rather than one calling for the interpretation and application of a bilateral treaty with regard to which it alone had jurisdiction.

[pp. 309-311 S.O. Owada] 12. It is my submission that, as far as the present case is concerned, the dispute before the Court is as defined by the Parties in their submissions to this Court. The so– called "original dispute between the Parties" has no direct legal relevance to this dispute before the Court. In this connection, the fact that "[a]t the time of those actions [of the United States of 1987 and 1988], neither Party made any mention of the 1955 Treaty" (Judgment, para. 37) is only to be expected, for the simple reason that at that time, especially in relation to the Security Council of the United Nations, the legality of the actions taken by the United States as such was the issue, but that in itself was not the dispute between the United States and Iran which later came to be brought before the Court. A distinct legal dispute arising out of this issue came about and crystallized in the form of the present case between the Applicant and the Respondent, only when Iran alleged that the United States actions in question constituted a "fundamental breach of various provisions of the [1955] Treaty" (Application of the Islamic Republic of Iran filed in the Registry of the Court on 2 November 1992) and the United States denied that allegation.

13. It is clear from this history that the case before the Court is one on a dispute between the Applicant and the Respondent concerning the interpretation and application of the 1955 Treaty in relation to certain United States actions alleged to be a violation of some provisions of this Treaty. It was on this basis that the Court decided in its Judgment on Preliminary Objection of 1996 to have jurisdiction over the claims of the Applicant concerning this dispute under Article XXI, paragraph 2, of the 1955 Treaty. The Court thus has the competence to examine Article XX, especially its paragraph 1 (d), in the context of the interpretation and application of Article X, paragraph 1, of the Treaty, but not to examine and rule on the issue of self-defence under general international law.

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14. In saying this, I do not mean to suggest that the Court is not entitled, for this jurisdictional reason stated above, to get into an examination of the scope and the relevance of the rules of general international law relating to the use of force. As I am going to elaborate later, my submission is simply that the Court is certainly entitled to do so, but only to the extent that such examination, ancillary to the examination of Article XX, paragraph 1 (d), is found to be necessary for clarifying the interpretation and application of Article XX, paragraph 1 (d), relating to "measures necessary to protect ... essential security interests [of one of the Parties]", once the Court decides that an examination of Article XX, paragraph 1 (d), is required as the result of its finding on Article X, paragraph 1. In such an eventuality, it will not be the issue of "selfdefence" under general international law as such but the issue of the use of force by the United States in the alleged actions complained of by the Applicant in the context of the provisions of Article XX, paragraph 1 (d), of the Treaty that the Court will have the competence to examine.

15. What has been analysed above leads me to the conclusion that what the Court should undertake at this stage was first of all to examine whether the alleged actions of the United States against the oil platforms in question constituted a violation of the provisions of Article X, paragraph 1, of the 1955 Treaty. Only if the Court found that it indeed was the case, the Court should proceed to an examination of the provisions of Article XX, paragraph 1 (d), of the Treaty in the context of its relevance to Article X, paragraph 1, of the same Treaty, to see whether those provisions of Article XX, paragraph 1 (d), as interpreted in light of the relevant rules of international law, offered a possible defence for justifying the actions of the United States under the Treaty.

16. In the conclusions of its Judgment in the present case, the Court has found that it cannot uphold the submission of the Applicant that the actions of the United States as alleged by Iran constitute a violation of the obligations of the United States under Article X, paragraph 1, of that Treaty relating to the freedom of commerce. Since I concur with this finding, I do not see any reason further to go into an examination of the second question relating to the interpretation and application of Article XX, paragraph 1 (d), of the Treaty.

[pp. 311-312 S.O. Owada] 19. The 1955 Treaty between the United States and Iran falls broadly within this category of treaties, which is traditionally described as the "general

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commercial treaty" (R. R. Wilson, United States Commercial Treaties and International Law (1960), p. 1). It is a "broad-purpose device" (ibid.) touching upon many subjects, but always in the field of economic relations between nations, such as the right of establishment of the nationals of the Contracting Parties in the territory of each other, the right of the Contracting Parties to engage in various economic activities in the territory of each other and freedom of commerce and navigation between the Contracting Parties, as guaranteed in the treaty on the basis of certain legal principles such as the principle of the most–favoured nation treatment, the principle of national treatment and the principle of fair and equitable treatment. As such, it is the type of treaties which in their origin date back to several centuries ago (in the case of the United States, the conclusion of the first treaty of this type – the Treaty of Amity and Commerce with France of 1778 – is in fact older than the establishment of the US Constitution), and which have provided a concrete legal framework for economic activities of the nationals of each Contracting Party in relation to the other by guaranteeing certain standards of treatment to be observed by each Contracting Party.

20. In this sense, the essential character and the basic scope of the treaties of this type as the legal instrument for regulating concrete economic activities that take place between the two Contracting Parties are well defined and the concrete legal rules applicable to these activities fairly specific. It is against this background that the United States introduced a new treatymaking practice of incorporating a compromissary clause of the type we find in Article XXI of the 1955 Treaty between the United States and Iran into these FCN treaties it was concluding in the post-World War II period. From the travaux préparatoires of these treaties it is clear that the United States adopted this new practice of accepting the jurisdiction of the International Court of Justice on the interpretation and application of the provisions of these treaties, because "provisions of commercial treaties were, in general, familiar", and "there were numerous court decisions interpreting them" (R. R. Wilson, ibid., p. 24).

21. This specific character of the FCN treaties, which include the 1955 Treaty that we are dealing with, should be kept in mind in assessing the general purport of the Treaty before us and in interpreting its concrete provisions in the context of the present case. In this sense, the position taken by the Court in its Judgment of 1996 on Preliminary Objection in the present case is correct in my view, when it states that "the object and purpose of the Treaty of 1955 was not to regulate peaceful and friendly relations between the two States in a general sense" (I.C.J.

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Reports 1996 (II), p. 814, para. 28), in spite of the very broad language used in the provisions of its Article I.

[pp. 315-316 S.O. Owada] 31. The Judgment states, correctly in my view, that "[i]n the view of the Court, the matter is one of interpretation of the Treaty, and in particular of Article XX, paragraph 1 (d)" (Judgment, para. 40). Having stated this position, however, the Judgment appears nevertheless to shift to the domain of "self–defence", assimilating this problem of interpretation of Article XX, paragraph 1 (d), with the general problem of self–defence under general international law. Thus, quoting from the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, to the effect that "action taken in self–defence, individual or collective, might be considered as part of the wider category of measures qualified in Article XXI as ‘necessary to protect’ the ‘essential security interests’ of a party" (I.C.J. Reports 1986, p. 117, para. 224), the Judgment states as follows: "when Article XX, paragraph 1 (d), is invoked to justify actions involving the use of armed force, allegedly in self-defence, the interpretation and application of that Article will necessarily entail an assessment of the conditions of legitimate self-defence under international law" (Judgment, para. 40).

32. It is submitted that this conclusion is a non sequitur. It is true in my view that, as a general proposition, the measures taken under Article XX, paragraph 1 (d), when they involve the use of force, have to be compatible with the requirements of international law concerning the use of force. However, this does not mean that the problem involved in the "measures necessary to protect essential security interests" of a High Contracting Party under Article XX, paragraph 1 (d), is synonymous with the problem involved in the right of self-defence under international law. Moreover, it has to be kept in mind that in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court was examining this problem on the basis of its jurisdiction given under Article XXIV of the 1956 Treaty between the parties with its application to the entire treaty, as well as under Article 36, paragraphs 2 and 5, of the Statute of the Court. Thus the Court could in that case get into the examination of the problem of self-defence under general international law without restriction. By contrast, the Court in the present case has jurisdiction only for the interpretation and application of Article XX, paragraph 1 (d). Under such circumstances, the interpretation and application of that Article in this specific context cannot be said to "necessarily entail an assessment of the conditions of legitimate self-defence

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under international law" (Judgment, ibid.), which presumably will mean an assessment of these measures in light of the requirements prescribed by the Charter of the United Nations as measures of "self-defence" under its Article 51.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[p. 30] 27. By its first jurisdictional objection, the United States suggested that the Memorial is fundamentally addressed to the treatment of Mexican nationals in the federal and state criminal justice systems of the United States, and the operation of the United States criminal justice system as a whole. It suggested that Mexico’s invitation to the Court to make what the United States regards as "far–reaching and unsustainable findings concerning the United States criminal justice systems" would be an abuse of the Court’s jurisdiction. At the hearings, the United States contended that Mexico is asking the Court to interpret and apply the treaty as if it were intended principally to govern the operation of a State’s criminal justice system as it affects foreign nationals.

28. The Court would recall that its jurisdiction in the present case has been invoked under the Vienna Convention and Optional Protocol to determine the nature and extent of the obligations undertaken by the United States towards Mexico by becoming party to that Convention. If and so far as the Court may find that the obligations accepted by the parties to the Vienna Convention included commitments as to the conduct of their municipal courts in relation to the nationals of other parties, then in order to ascertain whether there have been breaches of the Convention, the Court must be able to examine the actions of those courts in the light of international law. The Court is unable to uphold the contention of the United States that, as a matter of jurisdiction, it is debarred from enquiring into the conduct of criminal proceedings in United States courts. How far it may do so in the present case is a matter for the merits. The first objection of the United States to jurisdiction cannot therefore be upheld.

[pp. 31-33] 30. This issue is a question of interpretation of the obligations imposed by

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the Vienna Convention. It is true that the only obligation of the receiving State toward a foreign national that is specifically enunciated by Article 36, paragraph 1 (b), of the Vienna Convention is to inform such foreign national of his rights, when he is "arrested or committed to prison or to custody pending trial or is detained in any other manner"; the text does not restrain the receiving State from "arresting, detaining, trying, convicting, and sentencing" the foreign national, or limit its power to do so. However, as regards the detention, trial, conviction and sentence of its nationals, Mexico argues that depriving a foreign national facing criminal proceedings of consular notification and assistance renders those proceedings fundamentally unfair. Mexico explains in this respect that: "Consular notification constitutes a basic component of due process by ensuring both the procedural equality of a foreign national in the criminal process and the enforcement of other fundamental due process guarantees to which that national is entitled", and that "It is therefore an essential requirement for fair criminal proceedings against foreign nationals." In Mexico’s contention, "consular notification has been widely recognized as a fundamental due process right, and indeed, a human right". On this basis it argues that the rights of the detained Mexican nationals have been violated by the authorities of the United States, and that those nationals have been "subjected to criminal proceedings without the fairness and dignity to which each person is entitled". Consequently, in the contention of Mexico, "the integrity of these proceedings has been hopelessly undermined, their outcomes rendered irrevocably unjust". For Mexico to contend, on this basis, that not merely the failure to notify, but the arrest, detention, trial and conviction of its nationals were unlawful is to argue in favour of a particular interpretation of the Vienna Convention. Such an interpretation may or may not be confirmed on the merits, but is not excluded from the jurisdiction conferred on the Court by the Optional Protocol to the Vienna Convention. The second objection of the United States to jurisdiction cannot therefore be upheld.

34. […] the Court is unable to uphold the contention of the United States that, even if the Court were to find that breaches of the Vienna Convention have been committed by the

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United States of the kind alleged by Mexico, it would still be without jurisdiction to order restitutio in integrum as requested by Mexico. The Court would recall in this regard, as it did in the LaGrand case, that, where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court in order to consider the remedies a party has requested for the breach of the obligation (I.C.J. Reports 2001, p. 485, para. 48). Whether or how far the Court may order the remedy requested by Mexico are matters to be determined as part of the merits of the dispute. The third objection of the United States to jurisdiction cannot therefore be upheld.

[p. 33] 35. The fourth and last jurisdictional objection of the United States is that "the Court lacks jurisdiction to determine whether or not consular notification is a ‘human right’, or to declare fundamental requirements of substantive or procedural due process". As noted above, it is on the basis of Mexico’s contention that the right to consular notification has been widely recognized as a fundamental due process right, and indeed a human right, that it argues that the rights of the detained Mexican nationals have been violated by the authorities of the United States, and that they have been "subjected to criminal proceedings without the fairness and dignity to which each person is entitled". The Court observes that Mexico has presented this argument as being a matter of interpretation of Article 36, paragraph 1 (b), and therefore belonging to the merits. The Court considers that this is indeed a question of interpretation of the Vienna Convention, for which it has jurisdiction; the fourth objection of the United States to jurisdiction cannot therefore be upheld.

Case Concerning Certain Property (Liechtenstein v. Germany) Preliminary Objections Judgment of 10 February 2005

[pp. 22-27] 39. Germany’s second preliminary objection requires the Court to decide whether, applying the provisions of Article 27 (a)149 of the European Convention for the

149 Article 27 (a) reads as follows: “The provisions of this Conventon shall not apply to: a) disputes

relating to facats or situations prior to the entry into force of this Convention as between the parties to the dispute.”

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Peaceful Settlement of Disputes, the present dispute relates to facts or situations that arose before or after the 1980 critical date.

40. As recalled by the Parties (see paragraphs 34 and 36 to 38 above), this Court and the Permanent Court of International Justice have dealt with a comparable issue in a number of cases. Thus, in the Phosphates in Morocco case, the French declaration accepting the Permanent Court of International Justice’s jurisdiction spoke of "disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to this ratification" (Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 22). While the parties in that case agreed that the dispute arose subsequent to the date of the French declaration, the issue that divided them concerned the date of the "situations or facts" with regard to which the dispute arose, that is, whether it was prior or subsequent to the declaration. The Court found that the subject of the dispute was the so-called "monopolization of the Moroccan phosphates" (ibid., p. 25) and the inconsistency of that monopoly régime with earlier French treaty obligations. This régime was established by legislation adopted before the critical date. It was that legislation, the Court ruled, with regard to which the dispute arose.

41. In the Electricity Company of Sofia and Bulgaria case, the wording of the Belgian limitation ratione temporis was identical to the relevant language of the French declaration in the Phosphates in Morocco case. Here, too, the parties agreed that the dispute arose after the critical date, but they disagreed as to whether the "facts or situations" with regard to which the dispute arose were prior or subsequent to that date. In the Electricity Company case, Bulgaria argued that the awards of the Belgo-Bulgarian Mixed Arbitral Tribunal, which predated the critical date, had to be treated as the "situations" that gave rise to the dispute. The Permanent Court of International Justice rejected this argument and held that, while these awards constituted the source of the rights claimed by Belgium, they were not the source of the dispute because the parties had been in agreement throughout regarding their binding character. The Court explained this conclusion as follows:

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The Jurisdiction of the International Court of Justice

"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 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.) Since these facts all took place after the critical date, the Court rejected the Bulgarian preliminary objection to its jurisdiction.

42. In the Right of Passage case, this Court had to deal with India’s preliminary objection ratione temporis. The objection was based on its declaration accepting the Court’s jurisdiction "over all disputes arising after 5 February 1930, with regard to situations or facts subsequent to the same date". Here the Court first found that the dispute arose in 1954, when India interfered with Portugal’s alleged right of passage over Indian territory to certain Portuguese enclaves. The Court turned next to the question of the date of the situations or facts with regard to which the dispute arose. Relying on the holding of the Permanent Court of International Justice in the Electricity Company of Sofia and Bulgaria case, the Court emphasized that in determining the facts or situations with regard to which a dispute has arisen, only those facts or situations are relevant that can be considered as being the source of the dispute, that is, its real cause. It then made the following finding: "Up to 1954 the situation of those territories may have given rise to a few minor incidents, but passage had been effected without any controversy as to the title under which it was effected. It was only in 1954 that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India’s failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after

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5 February 1930." (Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 35.)

43. The text of Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes (see paragraph 18 above) does not differ in substance from the temporal jurisdiction limitations dealt with in those cases. In particular, no consequence can be drawn from the use of the expressions "with regard to" or "relating to" which have been employed indifferently in the various texts in question. The Court notes further that in the Phosphates in Morocco case, the Electricity Company in Sofia and Bulgaria case and the Right of Passage case, the Permanent Court of International Justice and this Court were called upon to interpret unilateral declarations accepting the Court’s jurisdiction under its Statute, whereas, in the present case, the Court has to interpret a multilateral Convention. Without pronouncing in any more general sense upon the extent to which such instruments are to be treated comparably, the Court finds no reason on this ground to interpret differently the phrase in issue. Nor have the Parties suggested otherwise. Accordingly, the Court finds its previous jurisprudence on temporal limitations of relevance in the present case.

44. In interpreting the latter ratione temporis limitations, this Court and the Permanent Court of International Justice before it emphasized that "[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).

45. Thus in the Phosphates in Morocco case, the facts with regard to which the dispute arose were found to be legislative measures that predated the critical date. The objection ratione temporis was accordingly upheld. In the Electricity Company of Sofia and Bulgaria and the Right of Passage cases, the disputes were found to have had their

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source in facts or situations subsequent to the critical date and thus the objections ratione temporis were rejected.

46. The Court considers that, in so far as it has to determine the facts or situations to which this dispute relates, the foregoing test of finding the source or real cause of the dispute is equally applicable to this case.

47. The Court will now consider whether the present dispute has its source or real cause in the facts or situations which occurred in the 1990s in Germany and, particularly, in the decisions by the German courts in the Pieter van Laer Painting case, or whether its source or real cause is the Beneš Decrees under which the painting was confiscated and the Settlement Convention which the German courts invoked as ground for declaring themselves without jurisdiction to hear that case.

48. The Court observes that it is not contested that the present dispute was triggered by the decisions of the German courts in the aforementioned case. This conclusion does not, however, dispose of the question the Court is called upon to decide, for under Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, 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.

49. In the Court’s view, the present dispute could only relate to the events that transpired in the 1990s if, as argued by Liechtenstein, in this period, Germany either departed from a previous common position that the Settlement Convention did not apply to Liechtenstein property, or if German courts, by applying their earlier case law under the Settlement Convention for the first time to Liechtenstein property, applied that Convention "to a new situation" after the critical date.

50. With regard to the first alternative, the Court has no basis for concluding that prior to the decisions of the German courts in the Pieter van Laer Painting case, there existed a common understanding or agreement between Liechtenstein and Germany that the

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Settlement Convention did not apply to the Liechtenstein property seized abroad as "German external assets" for the purpose of reparation or as a result of the war. The issue whether or not the Settlement Convention applied to Liechtenstein property had not previously arisen before German courts, nor had it been dealt with prior thereto in intergovernmental talks between Germany and Liechtenstein. Moreover, 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 (see Judgment of the German Federal Court of Justice (Bundesgerichtshof) of 11 April 1960, II ZR 64/58; see also Judgment of the German Federal Court of Justice (Bundesgerichtshof) of 13 December 1956 (AKU case), II ZR 86/54). In the Pieter van Laer Painting case, the German courts confined themselves to stating that the Settlement Convention was applicable in cases of confiscation under Decree No. 12, as with the other Beneš Decrees, and that, consequently, it was also applicable to the confiscation of the painting. Liechtenstein’s contention regarding the existence of a prior agreement or common understanding and an alleged "change of position" by Germany cannot therefore be upheld.

51. As to Liechtenstein’s contention that the dispute relates to the application, for the first time, of pre-1990 German jurisprudence to Liechtenstein property in the 1990s, the Court points out that 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. The Court finds that this case, like previous ones on the confiscation of German external assets, was inextricably linked to the Settlement Convention. The Court further finds that the decisions of the German courts in the Pieter van Laer Painting case cannot be separated from the Settlement Convention and the Beneš Decrees, and that these decisions cannot consequently be considered as the source or real cause of the dispute between Liechtenstein and Germany.

52. The Court concludes that, although these proceedings were instituted by Liechtenstein as a result of decisions by German courts regarding a painting by Pieter van Laer, these events have their source in specific measures taken by

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Czechoslovakia in 1945, which led to the confiscation of property owned by some Liechtenstein nationals, including Prince Franz Jozef II of Liechtenstein, as well as in the special régime created by the Settlement Convention. The decisions of the German courts in the 1990s dismissing the claim filed by Prince Hans-Adam II of Liechtenstein for the return of the painting to him were taken on the basis of Article 3, Chapter Six, of the Settlement Convention. While these decisions triggered the dispute between Liechtenstein and Germany, the source or real cause of the dispute is to be found in the Settlement Convention and the Beneš Decrees. In light of the provisions of Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, Germany’s second preliminary objection must therefore be upheld.

[p. 34 D.O. Kooijmans] 16. I respectfully disagree with the Court when it "points out that 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" and finds that "this case, like previous ones on the confiscation of German external assets, was inextricably linked to the Settlement Convention" (Judgment, para. 51).

17. In my view, this statement is beside the point, since it completely ignores the issue of whether the Settlement Convention can in any way be considered as intended, at the time of its conclusion, to be applicable to assets seized by the confiscating State as "German property for the purpose of reparation or restitution, or as a result of the state of war", whereas in actual fact these assets belonged to − and had belonged during the whole period of that state of war − to nationals of a neutral State. An affirmative answer to that question − which would in any case be part of the merits − would seriously affect the rights of neutrals under international law, and such a decision had not been taken by German courts previously.

18. My conclusion, therefore, can only be that the court decisions in the Pieter van Laer Painting case applied the Settlement Convention to neutral assets for the very first time, and that this introduced the new element I referred to earlier − or, to use the words of the Court, that the German courts faced a "new situation".

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[pp. 35-36 D.O. Kooijmans] 21. It is undoubtedly true that, as the Court states, the decisions of the German courts in the Pieter van Laer Painting case cannot be separated from the Beneš Decrees and the Settlement Convention, which all predate the 1980 critical date, but I have serious doubts as to whether this justifies the conclusion that "these decisions cannot consequently be considered as the source or real cause of the dispute" (Judgment, para. 51). The Court, before coming to this conclusion, has analysed its case law and that of its predecessor, the Permanent Court of International Justice, concerning similar temporal limitations in declarations made under Article 36, paragraph 2, of the Statute (Judgment, paras. 40-42). I consider this analysis useful, even if it has to be admitted that the various Court decisions are focused on the specific case at hand and, therefore, do not reflect a transparent general policy. I cannot, however, subscribe to the conclusion the Court draws from this analysis.

22. The Court evidently sees an analogy between the present case and the Phosphates in Morocco case. In that case, the Permanent Court of International Justice noted that "situations or facts subsequent to [the critical date in 1931] could serve to found the Court’s compulsory jurisdiction only if it was with regard to them that the dispute arose" (Judgemnt, 1938, P.C.I.J., Series A/B, No. 74, p. 24). It then found that a number of dahirs (legislative acts), adopted in 1920 and which allegedly were unlawful, constituted the essential facts which really gave rise to the dispute. Such "facts", by reason of their date, fell outside the Court’s jurisdiction (ibid., p. 26). Italy further relied on an alleged denial of justice to its nationals which was said to have become definitive as a result of certain acts subsequent to the critical date. The Court, however, observed that that part of the claim could not be separated from a decision of the Department of Mines, based on the 1920 dahirs and taken in 1925; an examination of that complaint, therefore, could not be undertaken either without extending the Court’s jurisdiction to a fact which, by reason of its date, was not subject thereto (ibid., p.29).

23. I interpret this latter part of the Judgment as implying that, if the decision of the Department of Mines had been taken after the critical date, the Court would not have considered the temporal limitation applicable to that part of the Italian claim, in spite of the fact that that decision had been based on the 1920 dahirs. While there are undoubtedly differences between an administrative act and a court decision, that situation is comparable to the present dispute, where the Settlement Convention, which came into force prior to the critical date, was applied for the first time to neutral assets after the critical date.

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24. This reading would also bring the present dispute into line with that of the Electricity Company of Sofia and Bulgaria case. In that case, the Permanent Court of International Justice stated, "[i]t is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard to that situation or fact. A situation or fact in regard to which a dispute is said to have arisen must be the real cause of the dispute." (Judgement, 1939, P.C.I.J. Series A/B, No. 77, p. 82.) In the present case, the "real cause of the dispute" ("le fait gnérateur du différend") is the application by the German authorities of the Settlement Convention to the assets of nationals of a State which was neutral during the Second World War.

25. For all the above-mentioned reasons, I cannot but conclude that Germany’s second preliminary objection cannot be upheld. In particular, I dissociate myself from the Court’s finding that "[while these decisions triggered the dispute between Liechtenstein and Germany, the source or real cause of the dispute is to be found in the Settlement Convention and the Beneš Decrees" (Judgment, para. 52). That conclusion, in my view, ignores the "new situation" established by these Court decisions.

[pp. 41-42 D.O. Elaraby] 6. For the purposes of this dissenting opinion, however, I will assume that, notwithstanding the broader language in the exclusion ratione temporis in this case, the "real cause" test is the correct test and I will confine my remarks to an explanation of why I believe the Court reached the wrong conclusion in its application of this test to the specific circumstances of this case.

7. The basis of the Court’s finding that the real cause of the dispute is not the German courts’ decisions of the 1990s, but facts and situations that occurred before the 1980s, is that the German court decisions "cannot be separated from the Settlement Convention and the Beneš Decrees" (Judgment, para. 51). This is because, according to the Court, the German courts’ decisions simply represented the latest in a long line of cases in which the German courts had consistently held that they lacked competence under the Settlement Convention to rule on the legality of property confiscated abroad (Judgment, para. 50). This misses the central point, however, which is that the German courts had never before applied the Settlement Convention to

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property belonging to a neutral State, so there is no long line of cases to be taken into account. Moreover, the Settlement Convention is a treaty dealing only with "German external assets". Liechtenstein is a third party and is not bound by its provisions. Whether the Beneš Decrees were based on citizenship or ethnicity (that is, the wider concept of persons belonging to the German people regardless of nationality), is irrelevant in the case instituted by Liechtenstein against Germany because Germany, the Respondent, was in no sense connected to the promulgation of the Beneš Decrees. It did not issue or apply the Beneš Decrees to confiscate Liechtenstein property. Indeed, its relationship to the Decrees is identical to the Applicant’s: both sustained damage as a result of confiscations that took place under them. Thus, all the facts and situations that predate the critical date under the European Convention serve only as historical background to the dispute between the parties to this case.

[p. 43 D.O. Elaraby] 10. It should, in my view, be manifestly clear that the German courts’ decisions purporting to include neutral Liechtenstein property under the umbrella of German external assets - in the 1990s, a decade after the critical date - should be considered the "real cause" of the dispute. Liechtenstein requested the Court to adjudge and declare that "Germany has failed to respect the sovereignty and neutrality of Liechtenstein" (Memorial of the Principality of Liechtenstein, p. 187, para. 1 (a)) because it treated Liechtenstein property as German assets. Thus, its claim relates exclusively to the propriety under international law of the German courts’ decisions. The lawfulness of the confiscation of Liechtenstein property in Czechoslovakia represents a separate issue which could constitute a dispute between Liechtenstein and Czechoslovakia but not Liechtenstein and Germany. Here then, the German courts’ decisions have the same character and nature as the events that took place after the critical date in the Electricity Company and Right of Passage cases. In the latter case, the Court held that: "It was only in 1954 that ... a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India’s failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after [the critical date]." (Right of Passage over Indian Territory, Merits, Judgment, I.C.J. Reports 1960, p. 35; emphasis added.)

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11. It is difficult to grasp how in the instant case the "whole" could have materialized before 1980 since no pre-l980 conduct attributable to Germany was raised in the proceedings. Indeed the Court, by confirming that the "issue whether or not the Settlement Convention applied to Liechtenstein property had not previously arisen before German courts" (Judgment, para, 50) admitted as much. The Court has demonstrated that a "new situation", namely the application of earlier case law under the Settlement Convention for the "first time" to neutral and nonGerman property, existed, and it is this situation that for the first time caused a dispute between Liechtenstein and Germany.

[pp. 51-54 D.O. Owada] 15. From this point of view the question could arise as to whether the language employed in Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes should be interpreted differently from the more usual expression employed in some other cases that have come before this Court. By way of illustrations, in the Phosphates in Morocco case before the Permanent Court of International Justice, the legal instrument in question, the French declaration of 1930 accepting the compulsory jurisdiction of the Court. employed the expression "any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to this ratification" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 22; emphasis added). In the Electricity Company of Sofia and Bulgaria case, also before the Permanent Court, the legal instrument in question was the Belgian declaration of adherence to the optional clause of the Court’s Statute. That also used the formula "any disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to this ratification" (Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.CJ.J., Series A/B, No. 77, p. 82; emphasis added). In yet another case in which the same issue of the scope of limitation ratione temporis on jurisdiction of the Court came before the present Court, i.e., Right of Passage case, the legal instrument in question was also the Indian declaration of acceptance of the jurisdiction of the Permanent Court of International Justice of 28 February 1940. Here again the declaration used the same formula of limiting the scope of acceptance to "‘disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 151; emphasis added).

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16. By contrast, the formula used in Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes is different. Formulated as a compromissory clause in a multilateral instrument, Article 27 (a) of the Convention limits the scope of jurisdiction of the International Court of Justice ratione temporis as follows: "The provisions of this Convention shall not apply to: (a)

disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute" (emphasis added).

17. It therefore seems to be in order to engage in an examination of the legislative history of Article 27 (a) of the Convention within the Council of Europe where it was finally adopted, with a view to ascertaining whether this divergence from the more usual formulation employed in the other instruments was an intended one with the express purpose of producing a different legal effect on the part of the drafters of the instrument. At the drafting stage of the Convention, "Proposals of the Committee on Legal and Administrative Questions for a European Act for the Peaceful Settlement of Disputes"150 included the following provision relating to the limitation ratione temporis to be incorporated in the European Act (which grew into the European Convention for the Peaceful Settlement of Disputes of 1957): "It shall be deemed not to apply to disputes arising out of facts which occurred prior to the accession to the Act of Members parties to such disputes ..." (emphasis added). However, when these proposals were submitted to a Committee of Experts who then produced a draft "Final Report of the Committee of Experts on the Peaceful Settlement of Disputes and the Creation of a European Court of Justice" of 18 May 1953151, some change in the wording of this part took place. Thus in the Final Report adopted of 22 May 1953, the then Article 1 (2) (which later became Article 27 (a) of the draft Convention) came to include the following formula in relation to the limitation ratione temporis on the jurisdiction of the Court: "This undertaking shall not apply to disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute." (Council of Europe doc. CM (53) 58; A.12.822; TL.794/WM; Appendix U, p. 20; emphasis added.)

150

Contained in Appendix, Part B, to Recommendation 36 (1952) on the establishment of a European Court of Justice and of a European Act for the Peaceful Settlement of Disputes.

151

Council of Europe doc. EXP/RPD/JU (53); A,12.379; TL.794/WM/Unrevised.

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There is nothing in the relevant records available that can shed light on the background for this change. On the contrary, the "Comments on the Articles of the Preliminary Draft Convention" contained in the Final Report states by way of a commentary on Article 1 (2) (i.e., present Article 27 (a)) that: "This paragraph sets a time-limit to the facts giving rise to a dispute which may be submitted to the Court. It lays down that the starting point shall be the date of the entry into force of the Convention." (Council of Europe doc. CM (53) 58; A. 12.822; TL.794/WM, p. 6; emphasis added.)

18. In the absence of any further documentary evidence to clarify this point, it would seem reasonable to presume that the final change in wording on this crucial part of the formulation in Article 27 (a) of the Convention from "disputes arising out of facts" to "disputes relating to facts or situations" did not signify any intentional modification on the scope of the limitation ratione temporis, both being treated indiscriminately as referring to "the facts giving rise to a dispute ".

19. Based on this analysis of the travaux préparatoires on the legislative history of the compromissory provisions of the Convention, it would seem safe to conclude, as the Judgment seems to assume without going through a detailed analysis on this point, that the formulation of the limitation ratione temporis employed in the compromissory provisions of the European Convention for the Peaceful Settlement of Disputes should be interpreted as being no different from the comparable formulations employed in the other legal instruments which were the subject of scrutiny in the previous three judgments of the Court, which now form the case law on this issue.

[pp. 54-56 D.O. Owada] 21. In determining the issue of which facts or situations are to be regarded as "facts or situations giving rise to the dispute" in the context of the present case, it is of cardinal importance that we base ourselves on the characterization of the subject-matter of the dispute in the present case as the Court has identified it. I have already stated in Part I of this opinion that the proper way of looking at the present case, especially taking account of the claims of the Applicant as presented in its Application, is to define the subject-matter of the present dispute as consisting in the alleged change in the position of Germany in the 1990s, through a series of German court decisions, on the question of treatment of Liechtenstein

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property as "German external assets and other property" for the purposes of Article 3, paragraph 1, of Chapter Six of the Settlement Convention.

22. It is true that this allegation has not been fully elaborated by the Applicant at this stage of the proceedings, while the Respondent flatly denies that there has been any such change of position by Germany. In fact this question can only be determined definitively when the Court enters into a thorough examination of the facts of the case at the merits stage of the case. Nevertheless, on the basis of the relevant documents and the oral presentations both of the Applicant and of the Respondent submitted to the Court, it is difficult to deny that this Liechtenstein claim is something more than a sheer allegation which patently is not sustainable even an a prima facie basis of the facts made available to the Court. Germany claims that there has been no change of position in the jurisprudence of the German courts; and that its courts have consistently held that they are barred by the Settlement Convention from adjudicating on the lawfulness of any confiscation measures for the purposes named by the Settlement Convention (CR 2004/24, p. 15, para. 17). However, a glance at the jurisprudence of the German courts (cf. cases listed in Observations of Liechtenstein, Appendix I) seems to reveal that this latter statement does not seem to be entirely accurate. It may be true that in those cases where the application of the Settlement Convention was involved, the German courts have consistently held that they lacked the competence to penetrate the legal veil of the provisions of Article 3, paragraph 1, of Chapter Six of the Settlement Convention and refrained from evaluating the lawfulness of the measures that had been applied to what were unquestionably "German external assets". As the Respondent itself concedes (CR 2004/24, p. 13, para. 11), however, no concrete case had arisen, until the Pieter van Laer Painting case was brought before the court in Cologne in which the applicability itself of the Settlement Convention to Liechtenstein property as "German external assets or other property" was considered for the first time.

23. The AKU152 case cited in this context by the Respondent as evidence of the German position quoted above (CR 2004/24, p. 15, para. 17) might appear to serve as a precedent for holding that "[Article 3, Chapter Six, of the Settlement Convention as amended by Schedule IV of the Paris Protocol of 23 October 1954] does not confer [upon German Courts] a right to

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examine this question [of applicability of the Convention] in accordance with German law" (International Law Reports, Vol. 23 (1956), p. 23). However, it is preceded by one important condition by way of a proviso, which states as follows: "The sole condition ... which must now be satisfied in order that the jurisdiction of the German Courts shall be excluded is that the claim is concerned with an asset seized for the purpose of reparation or one of the other purposes referred to in paragraph 1 [of Article 3]." (Ibid., p. 22.) It would seem therefore that this decision, with this expressly stated proviso, could not be an authority on the point at issue here, i.e., that the German courts have consistently held that they were barred under the Settlement Convention from examining the applicability itself of the Settlement Convention to neutral assets.

24. To this extent at any rate, it thus seems undeniable that the position of the German courts in the Pieter van Laer Painting case, culminating in the decision of the court of the final instance in civil matters, i.e., the Bundesgerichtshof, followed by the decision of the Federal Constitutional Court of 14 January 1998 on a constitutional complaint which held that Liechtenstein property fell within the scope of the Settlement Convention, has had the effect of creating a new case law in applying the principle − a principle that may well have been consolidated in relation to uncontestably "German external assets" that had been subject to war-time or post-war reparation régime by allied or other powers − to a new situation involving a neutral property of Liechtenstein.

[pp. 72-73 D.O. Berman] 6. The issues on which I part company substantially from the Court relate rather to the second preliminary objection, that under which Germany claims that the dispute between the Parties falls outside Germany's acceptance of the jurisdiction of the Court by virtue of the exception ratione temporis contained in Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes. There is no need for me to repeat the opposing contentions of the Parties on this question, or the prior jurisprudence of the Court on questions of this kind; on both aspects, I have no quarrel with the summary given in the Court's Judgment. I need only remark that, in my view, the prior jurisprudence of this Court and its predecessor, difficult as some aspects of it are to reconcile, at least establishes that, in 152

See AKU case, Judgment of the German Federal Court of Justice (Bundesgerichtshof) of 13 December 1956 (II ZR 86/54); see also International Law Reports, Vol. 23 (1956), pp. 21-

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interpreting clauses of this kind, the Court enjoys a certain latitude or discretion in determining what facts or situations should be regarded as what the Court now refers to as the "source or real cause" of a dispute before it − if only because no one international dispute exactly resembles another in the way in which it comes into existence. The Court discusses (in paragraph 43 of the Judgment) the fact that the limitation ratione temporis relied upon in the present case is contained in an agreed treaty instrument on the peaceful settlement of disputes, not in a unilateral acceptance under the optional clause, and decides that nothing material turns on that fact. With that conclusion I have no great difficulty, at least in the particular circumstances of this case, though I would not exclude the possibility of a different answer being appropriate in other circumstances. In the present case, at all events, each Party, in its pleadings, has half-expressly, half-implicitly accepted the relevance of the three cases primarily in question (Phosphates in Morocco, Electricity Company of Sofia and Bulgaria, and Right of Passage), and the Court is entitled to treat that as an agreed understanding between these two Contracting States as to the extent of their treaty obligation towards one another, and give weight to it accordingly under normal Vienna Convention principles.

7. More to the purpose is however the fact that the Court, in reaching its conclusion (a somewhat discretionary conclusion, as I indicate above) that the essential facts or situations to which the present dispute "relates" are anterior to the critical date of 1980 under the European Convention, bases itself on the argument that the German courts, in their decision not to hear the Pieter van Laer Painting case, were doing no more than continuing their consistent line of jurisprudence. I say, "bases itself on the argument", but I could equally well have said "concludes", because the point at issue, it will readily be apparent, is a critical element, perhaps even the crucial element, in the chain of reasoning that leads the Court, in paragraphs 50-52 of the Judgment, to uphold Germany's second preliminary objection, and on that basis to dismiss Liechtenstein's Application.

8. The argument in question is, of course, one that was vigorously advanced by Germany in both the written and the oral pleadings. My disappointment lies in the uncritical way in which the Court has adopted this argument as its own. The Court has failed, on the one hand, properly to distinguish the argument into its component parts, and compounded the lapse by

24; Neue Juristische Wochenschrift, Vol. 10, Issue 6 (1957), p. 217.

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then failing to subject these component parts − crucial as they are to its chain of reasoning − to adequate scrutiny.

9. As I see it, the argument that there was nothing new in the position taken by Germany in respect of the Pieter van Laer painting resolves itself logically into these three propositions: first, that there has been consistency in the jurisprudence of the German courts in respect of issues relating to the confiscation of German external property (at least since the entry into force of the Settlement Convention in 1955); second, that the tenor of these decisions has been compelled by the terms of the Settlement Convention (in other words, that the German courts have had no option but to decide as they did); and third, that it is simply these decisions of the German courts on their own that has served to generate the present dispute.

[pp. 75-77 D.O. Berman] 13. If it was the intention of the Three Powers to impose a universal preclusion, against all comers, of the kind described above, it can surely be a presumed intention only. No evidente was offered to this Court to show that that was indeed the actual intention behind Chapter Six of the Settlement Convention. But would it not be strange in the extreme to suppose that the Three Powers could have intended to protect from all scrutiny confiscations that clearly went outside the scope of the reparations regime laid down by them jointly with their wartime Allies, especially confiscations carried out at the expense of neutral States, towards whom they themselves owed the legal obligations arising out of neutrality, and with whom they maintained friendly relations after the War? And, if one looks at the reported decisions of the German courts themselves, can one discern the slightest sign of a detailed enquiry having been made into what the actual intentions behind the Settlement Convention were? I, for my part, find no indication whatever of a prise de position being sought from, or given by, the German Government on that question in any of these domestic legal proceedings. Nor a fortiori has this Court been given even a hint that the German Government had sought (and received), at any point in time, confirmation from their Aillies and co-Contracting Parties of the interpretation Germany was giving to their common treaty, and specifically not when the issue of neutral property arose four-square in respect of the Pieter van Laer painting. Nor, by the same token, is there any sign of any such evidence as to the intentions (common intentions) of the Contracting Parties to the Settlement Convention having been presented by the German authorities to their own courts at the time when the jurisprudence of the latter was taking shape.

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14. In other words, this Court is now being asked to proceed on the basis of the proposition that the victorious Allies, in their eagerness to ensure that their former enemy should not be in a position to question measures taken by them against enemy property, were completely indifferent to any risk that this regime might be applied to the detriment of neutral (i.e. nonenemy) property; and that, a full ten years later, the three Western Allies, for their part, forced such a conclusion on a reluctant Germany (by then "Federal Republic of Germany"). The proposition is, to put it mildly, counter-intuitive, and yet it is offered up in a formal judicial context without the slightest element of positive proof to sustain it! Surely it must be the case that, if the question had been put (in either its negative or its positive form), say to the Three Powers during the negotiation of the Settlement Convention, the answer would have been obvious. Anything else would carry with it the supposition that the Three Powers consciously intended to breach their own obligations towards States whose neutrality they had recognized during the War.

15. In brief, no sooner does one proceed to probe beneath the surface of some of the propositions advanced in this case, than one encounters the uneasy feeling that what has been presented to the Court as the inevitable and inescapable consequences of a regime imposed on Germany in fact seems more than likely to have contained along the way some elements of conscious choice by organs of the German Stake. This is not - of course - to say that the choices made were bad or ignoble ones, or that there was any element of deliberate intention to damage the interests of third States. But that is not the issue. The issue, as it presents itself in this case, is what steps out to have followed once it became clear tat this was going to be the result of the positions that had been taken by Germany. And that, on all the evidence in the case, including that marshaled by the Court in support of the Respondent's second preliminary objection, did not become clear until the 1990s, well after the critical date under the European Convention for the Peaceful Settlement of Disputes.

[pp. 78-80 D.O. Berman] 20. … If the German answer to the Liechtenstein claim, i.e. that it was the powerless agent of an obligation imposed upon it by the Three Powers, is to be subjected to critical examination - as in my opinion it manifestly must be - it has first to be broken down into its two component parts. To do so requires some further creative interpretation of my own, in the absence of any proper argument on either point by either

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Party before the Court. But I believe I do no more than tease out the inner logic when I say that this argument depends upon the following: (a) that Germany was entitled (i.e. legally entitled) to oppose its obligations (i.e. its claimed obligations) under the Settlement Convention to Liechtenstein, which was not a party to that treaty; (b) that there was no novus actus interveniens in the arrangements in 1990 which brought about the Final Settlement with respect to Germany.

21. These constituent propositions have only to be stated in order to see how open to question both of them are.

22. Proposition (a) stands in obvious conflict with the pacta tertiis rules in Articles 34 and 35 of the Vienna Convention on the Law of Treaties, which certainly reflect the customary international law on the subject. Yet the German argument before the Court simply parrots that Germany had to follow its obligations (sc. towards the Three Powers) under the Settlement Convention, as if it was obvious (including, presumably, to all third States) that Germany would oppose this Convention to non-parties, to the detriment of the latter, and without regard to the elementary proposition that a State cannot, by contracting with a second State, absolve itself of its obligations towards a third State (for the application of which rule in the treaties field, cf. Article 30 of the Vienna Convention). And if the contradiction is glaring enough as it stands, how much more glaring still must it be when what is sought to be imposed on the third State is not even what the treaty, on its natural meaning, seems to say!

23. It is however proposition (b) that raises the more profound questions - at least in the context of the present Judgment. The relevant treaty provisions, Chapter Six of the Settlement Convention, were self-evidently the subject of conscious attention, if not in the Four-plusTwo negotiations themselves, then certainly when Germany and the Three Powers negotiated the Exchange of Notes of 27/28 September 1990, since they formed the explicit subject-matter of part of its paragraph 3. Of utmost significance is the fact that those Parts of Article 3 of Chapter Six that preclude claims, were prolonged and in effect made permanent, whereas the obligation in Article 5 to pay compensation was extinguished; this notwithstanding the inescapable conclusion that the Allies, in negotiating the Settlement Convention at the time, must have regarded the obligation to pay compensation in Article 5 as the necessary counterpart to Article 3. No evidence has been offered to the Court - by either Party - as to

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how or why the Settlement Convention was dealt with in this particular way; presumably evidence of that kind was not accessible to the Applicant (other than the shreds in paragraphs 3.54 and 5.56 of the Memorial), but the evidence must most certainly be in the possession of the Respondent. Be that as it may, it is hard to imagine any possible reason why this carefully calibrated metamorphosis of Chapter Six can have been at the insistence of the Three Powers. If per contra there are grounds for the assumption that the perpetuation of the one obligation and the extinction of the other was procured by Germany, for its own benefit, then that must surely have a substantial effect on one's view of the case. On the one hand, because the Allies had specifically intended the regime of the Settlement Convention to be a temporary expedient only, pending a final regulation of the reparations question, as Article 1 of Chapter Six recites. On the other hand, because it can certainly not be asserted that Germany was in the powerless position it claims to have been in in 1952/1955, and thus to have had to accept through gritted teeth in 1990 whatever its Western partners chose to impose upon it. But, in the very specific context of the present Judgment, the events of 1990 may be more than "substantial" in their effects; they may be decisive. Why? Because they may suggest a wholly different analysis of what represents "the source or real cause" of this dispute, and one which, without any doubt, does not fall within Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, on which the Court has chosen to rest its decision.

24. At all events, much of what I say in the preceding paragraph remains, for the moment, at the level of inference or supposition, in the absence of proper evidence or argument about what did happen in 1990. That in turn suggests, yet again, that the Court was not in a position adequately to assess, on the material available to it at the present stage of the case, whether the second preliminary objection was, or was not, well founded. If so, the accepted way to deal with the situation would be to join the objection to the merits, as foreseen in paragraph 9 of Article 79 of the Rules.

2.6. Agreement in Regard to Jurisdiction in the Course of the Proceedings

Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003

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[pp. 106-107] 20. Whereas on a request for the indication of provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established;

21. Whereas in the present case the Applicant did not in its Application invoke any provisions relied on as affording a basis on which the jurisdiction of the Court might be established, but proposed to found the jurisdiction of the Court upon a consent thereto yet to be given by France, as contemplated by Article 38, paragraph 5, of the Rules of Court; whereas by a letter dated 8 April 2003 from the Minister for Foreign Affairs of France, France consented explicitly to the jurisdiction of the Court to entertain the Application on the basis of that text;

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2.7. Jurisdiction on the basis of a previous judgment

2.8. Jurisdiction and Third States

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 421] 238. 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 cannot be determined by decision of the Court unless Equatorial Guinea and Sao Tome and Principe have become parties to the proceedings. Equatorial Guinea has indeed requested – and has been granted – permission to intervene, but as a non–party intervener only. Sao Tome and Principe has chosen not to intervene on any basis.

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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. In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects – even if only indirect – of a judgment affecting their legal rights. The jurisprudence cited by Cameroon does not prove otherwise. 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. 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. These are two distinct areas of the law, to which different factors and considerations apply. Moreover, in relation to the specific issue of the tripoint, the Court notes that both Parties agree that it should not fix one. It is indeed not entitled to do so. In determining any line, the Court must take account of this. 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.

[pp. 472-473 Decl. Herczegh] … I cannot however subscribe to the proposition set out in paragraph 238 of the reasoning, which states inter alia :

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I see in this passage a scarcely veiled criticism, which I cannot share, of the Court’s Statute, which is an integral part of the United Nations Charter. Article 59 of the Statute provides as follows : « The decision of the Court has no binding force except between the parties and in respect of that particular case. » That is a necessary, indeed inevitable, consequence of the fact that the Court’s jurisdiction is founded on the consent of the parties. The Court must ensure that it takes no decision which oversteps the limits laid down by Article 59 and which would in consequence be without binding force and remain a dead letter. This is not only a principle of the sound administration of justice, but also an obligation incumbent upon the Court deriving from its function as laid down by its Statute, namely, in particular, to decide in accordance with international law such disputes as are submitted to it. In certain circumstances, satisfying the obligation not to affect the rights of third States may pose problems for the Court, which explains and justifies the inclusion in its Statute of a provision concerning the intervention of a State which considers that it has an interest in a dispute of a legal nature which may be affected by the decision in the case (Art. 62). The Judgment of 14 April 1981 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, and the separate opinions of Judges Morozov, Oda and Schwebel appended to that Judgment, and then the Judgment of 21 March 1984 in the case concerning Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, and the dissenting opinions of Judges Sette–Camara, Oda, Schwebel and Jennings, clearly demonstrate the complexity of the problem and the Court’s efforts to give a consistent interpretation of the relevant provisions of the Statute and to apply them in accordance with their letter and their spirit. The last word has yet to be said in this debate. However, as Judge Schwebel so aptly put it : « Article 59 cannot, by any canon of interpretation, be read so as to read Article 62 out of the Statute » (I.C.J. Reports 1984, p. 134, par. 9). Moreover, at least in my opinion, it cannot be said that the protection afforded to the rights of third parties by Article 59 of the Statute might be insufficient. The criticsm of this Article strikes me as misplaced.

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This is not a rule of law which, in itself, might be said sufficiently to protect or not to protect a legal interest of a particular country. It is, rather, a provision which it is for the Court to interpret and apply in such a way that such protection is made as effective as possible. Hence, whether that protection proves to be sufficient or not depends on the Court. In the present case the Court carefully considered the legal interests of Equatorial Guinea and Sao Tome and Principe and it was in that sense and in that spirit that it rendered its Judgment concerning the determination of the maritime boundary between Cameroon and Nigeria. In order to do so it had no need whatever to make a critical remark in regard to an Article of the Statute.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[p. 211] 108. According to the second objection of Iran, the United States is in effect submitting a claim on behalf of third States or of foreign entities, and has no title to do so. Reference has been made in the United States argument on the counter–claim to incidents involving vessels flying the flags of the Bahamas, Panama, the United Kingdom and Liberia; Iran contends that the United States is thus claiming to defend the interests of these States, which are not parties to the present proceedings.

109. The Court recalls that the first submission presented by the United States in regard to its counter–claim simply requests the Court to adjudge and declare that the alleged actions of Iran breached its obligations to the United States, without mention of any third States. Accordingly, the Court will strictly limit itself to consideration of whether the alleged actions by Iran infringed freedoms guaranteed to the United States under Article X, paragraph 1, of the 1955 Treaty. The objection of Iran is thus as such devoid of any object and the Court cannot therefore uphold it.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

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[pp. 237-238] 203. The Court has had to examine questions of this kind on previous occasions. In the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), the Court observed that it is not precluded from adjudicating upon the claims submitted to it in a case in which a third State "has an interest of a legal nature which may be affected by the decision in the case", provided that "the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for". The Court further noted that: "In the present case, the interests of New Zealand and the United Kingdom do not constitute the very subject-matter of the judgment to be rendered on the merits of Nauru’s Application and the situation is in that respect different from that with which the Court had to deal in the Monetary Gold case. In the latter case, the determination of Albania’s responsibility was a prerequisite for a decision to be taken on Italy’s claims. In the present case, the determination of the responsibility of New Zealand or the United Kingdom is not a prerequisite for the determination of the responsibility of Australia, the only object of Nauru’s claim ... In the Monetary Gold case the link between, on the one hand, the necessary findings regarding, Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical ... In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia. Accordingly the Court cannot decline to exercise its jurisdiction." (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 261-262, para. 55.)

204. 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

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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.

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2.9. Review of Arbitral Awards

2.10. Concurring Jurisdictions

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004

[pp. 298-299] 45. … On the question of the legal grounds for jurisdiction of the Court, the Application stated that "[t]he Government of the Federal Republic of Yugoslavia invokes Article 36, paragraph 2, of the Statute of the International Court of Justice as well as Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide". On 12 May 1999, during the oral proceedings on the request for provisional measures, Serbia and Montenegro submitted to the Court a "Supplement to the Application", invoking as an additional basis of jurisdiction "Article 4 of the Convention of Conciliation, Judicial Settlement and Arbitration between the Kingdom of Yugoslavia and Belgium, signed at Belgrade on 25 March 1930 and in force since 3 September 1930".

46. 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 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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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). But in those instances, the parties to the cases before the Court were, without doubt, parties to the Statute of the Court and the Court was thus open to them under Article 35, paragraph 1, of the Statute. That is not the case in the present proceedings in which an objection has been made regarding the right of the Applicant to have access to the Court. And it is this issue of access to the Court which distinguishes the present case from all those referred to above. As the Court observed earlier (see paragraph 30 above), 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 fundamental; for if it were not such a party, the Court would not be open to it under Article 35, paragraph 1, of the Statute. In that situation, subject to any application of paragraph 2 of that Article, Serbia and Montenegro could not have properly seised the Court, whatever title of jurisdiction it might have invoked, for the simple reason that Serbia and Montenegro did not have the right to appear before the Court. 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. 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

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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.). There is no doubt that Serbia and Montenegro is a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection was raised by certain Respondents (see paragraphs 49, 51, 93, 96 and 97 below) that Serbia and Montenegro did not meet, at the time of the filing of its Application on 29 April 1999, the conditions set down in Article 35 of the Statute.

2.11. Dismissal in limine litis

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[p. 249] 91. Whereas in the absence of a manifest lack of jurisdiction, the Court cannot grant Rwanda’s request that the case be removed from the List;

[p. 268 S.O. Dugard] 7. In the present case the Court has rightly held that the instruments invoked by the Applicant, prima facie, provide no basis for jurisdiction. It does not, however, go so far as to hold that there is a "manifest lack of jurisdiction" warranting the removal of the Application from the List (Order, para. 91). The Court gives no clear reason for this finding, but suggests that the failure of the Applicant to meet preconditions for the establishment of jurisdiction or to show a connection between the dispute before the Court and the treaties relied upon for jurisdiction "at this stage in the proceedings" (ibid., paras. 79, 82 and 88) might be remedied at a later stage of the proceedings (ibid., para. 90). In my view, such a finding sets too low a threshold for "manifest lack of jurisdiction" in the circumstances of the present case, and sets a dangerous precedent for the Court.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004

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[pp. 292-298] 28. In the original Applications instituting proceedings in this group of cases, Serbia and Montenegro invoked as the title of jurisdiction of the Court in each case Article IX of the Genocide Convention; in five cases, including the present one, it invoked its own acceptance of the jurisdiction of the Court under the optional clause of Article 36, paragraph 2, of the Statute, together with that of the respondent State; and in two of the cases, including the present one, it also invoked a bilateral treaty between the respondent State concerned and the Kingdom of Yugoslavia. The Applications of Serbia and Montenegro of 29 April 1999 asserted, at least by implication, that the Court was then open to Serbia and Montenegro, under Article 35, paragraph 1, of the Court’s Statute, on the basis that it was a Member of the United Nations and thus a party to the Court’s Statute, by virtue of Article 93, paragraph 1, of the Charter. Subsequently, this was in fact expressly stated in the Memorial filed by Serbia and Montenegro.

29. However, in its Observations on the preliminary objections of each of the respondent States, filed on 20 December 2002, Serbia and Montenegro claimed that "the acceptance of the Federal Republic of Yugoslavia as a new member of the United Nations on 1 November 2000" constituted a "new fact", and on this basis it stated as follows: "As the Federal Republic of Yugoslavia became a new member of the United Nations on 1 November 2000, it follows that it was not a member before that date. Accordingly, it became an established fact that before 1 November 2000, the Federal Republic of Yugoslavia was not and could not have been a party to the Statute of the Court by way of UN membership." In addition, as regards the question of jurisdiction of the Court under the Genocide Convention, Serbia and Montenegro in its Observations drew attention to its own accession to that Convention in March 2001, and stated that "[t]he Federal Republic of Yugoslavia did not continue the personality and treaty membership of the former Yugoslavia, and thus specifically, it was not bound by the Genocide Convention until it acceded to that Convention (with a reservation to Article IX) in March 2001".

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In its submissions, however, Serbia and Montenegro did not ask the Court to rule that it had no jurisdiction but only requested the Court "to decide on its jurisdiction considering the pleadings in these Written Observations" (emphasis added).

30. 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 46 below). 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.

31. A number of arguments have been advanced by different Respondents as possible legal grounds that would lead the Court to take this course. One argument advanced by some of the respondent States is that the position of Serbia and Montenegro is to be treated as one that in effect results in a discontinuance of the proceedings which it has instituted. 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 ...". However, Serbia and Montenegro has expressly denied that its Observations were a notice of discontinuance, and has emphasized that it did not state that it was "not going on with the proceedings", but rather that it was requesting the Court to decide on the issue of jurisdiction. It has emphasized that it wants the Court to continue the case and to decide upon its jurisdiction, even though the decision that it seeks may result in a conclusion that there is no jurisdiction.

32. 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

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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). 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. The Court is therefore unable to treat the Observations of Serbia and Montenegro as having the legal effect of a discontinuance of the proceedings instituted by that State.

33. 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 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. By Orders of 2 June 1999, it removed from the List two cases brought by Serbia and Montenegro concerning Legality of Use of Force against Spain and the United States of America, on the ground that the Court "manifestly lack[ed] jurisdiction" (I.C.J. Reports 1999 (II), p. 773). The present case does not however fall into either of these categories.

34. Another argument for the removal of the case from the List which has been advanced in interpretation of the position of Serbia and Montenegro is that there is substantive agreement between the Parties on a "question of jurisdiction that is determinative of the case", and that as a result the dispute before the Court has disappeared. The Respondents have noted that the Court is asked by Serbia and Montenegro to determine the question of jurisdiction raised in the preliminary objections of the respondent States, in its exercise of the compétence de la compétence

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reflected in Article 36, paragraph 6, of the Statute. 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, ibid., p. 477, para. 60; emphasis added).

35. In this argument before the Court, attention has been drawn to the specific terms of the provision in Article 36, paragraph 6, of the Statute, whereby "[i]n the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by decision of the Court" (emphasis added). It has thus been argued that it is common ground between the Parties that the Applicant was not a party to the Statute at the time of institution of the proceedings, and that there is therefore now no "dispute as to whether the Court has jurisdiction". On this basis, it has been suggested that "[f]or the Court to exercise jurisdiction on a basis which has been abandoned by the Applicant and which was always denied by the Respondent, would make a mockery of the principle that jurisdiction is founded on the consent of the parties".

36. 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

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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.

37. As noted above (paragraph 29), Serbia and Montenegro, after explaining why in its view it is questionable whether the Court has jurisdiction, has asked the Court simply "to decide on its jurisdiction" considering the pleadings formulated in its Observations. At the hearings, it insisted that it "wants the Court to continue the case and to decide upon its jurisdiction - and to decide on the merits as well, if it has jurisdiction". Serbia and Montenegro contends that "the position of the FRY with regard to international organizations and treaties has been a most intricate and controversial matter", so that "[o]nly a decision of this Court could bring clarity".

38. 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.

39. It may be mentioned here briefly that some of the Respondents have implied that the attitude of Serbia and Montenegro might be influenced by the existence of a pending case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), hereinafter referred to as "the Genocide Convention case". It is recalled that Serbia and Montenegro in 2002 sought a revision of a Judgment of 11 July 1996 on preliminary objections in that case, basing itself on arguments similar to those which are advanced in the present case concerning its status in relation to the United Nations (Application for Revision of the Judgment of 11 July 1996 in the Case

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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), hereinafter referred to as "the Application for Revision case"). The Court, by its Judgment of 3 February 2003, rejected this Application for revision of the earlier Judgment, on the ground that the necessary conditions specified in Article 61 of the Statute for revision of a judgment were not met in that case. In the present case the Respondent contends that there is no dispute between itself and the Applicant on jurisdiction; that if there is any subsisting dispute to which Serbia and Montenegro is party, it is the dispute with Bosnia and Herzegovina; and that the current proceedings "cannot be used to procure a favourable opinion [from the Court], for use in an entirely separate piece of litigation".

40. 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.

41. Yet another argument advanced for reaching the conclusion that the Court would be justified in summarily disposing of the case without a jurisdictional decision relates to a proposition that the substantive dispute under the Genocide Convention, rather than the dispute over jurisdiction, has disappeared. It has been argued that Serbia and Montenegro, by contending that it was not a party to the Genocide Convention until March 2001, is bound to recognize that the rights which it was asserting in its Application under that Convention had no legal basis, and that therefore any legal dispute between itself and the respondent States concerning these rights and obligations under the Convention has ceased to exist. That dispute is the sole dispute in the cases concerning Legality of Use of Force in which the only ground of jurisdiction relied on is Article IX of the Genocide Convention, and thus, in those cases, the whole dispute would have disappeared. In the present case, this argument would imply that the Genocide Convention cannot be relied on by Serbia and Montenegro against Belgium.

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42. It has also been suggested that Serbia and Montenegro has, by its conduct, either forfeited or renounced its right of action in the present case and is in any event now estopped from pursuing the present action in so far as that right of action is based on the Genocide Convention. More broadly, it is suggested that, by inviting the Court to find that it has no jurisdiction, the Applicant can no longer be regarded as pursuing the settlement by the Court of the substantive dispute.

43. The Court is unable to uphold these various contentions. As regards the argument that the dispute on jurisdiction has disappeared, Serbia and Montenegro has not invited the Court to find that it has no jurisdiction; while it is apparently in agreement with the arguments advanced by the Respondents in that regard in their preliminary objections, it has specifically asked in its submissions for a decision of the Court on the jurisdictional question. This question, in the view of the Court as explained above, is a legal question independent of the views of the parties upon it. As to the argument concerning the disappearance of the substantive dispute, it is clear that Serbia and Montenegro has by no means withdrawn its claims as to the merits. Indeed, these claims were extensively argued and developed in substance during the hearings on jurisdiction, in the context of the question of the jurisdiction of the Court under Article IX of the Genocide Convention. It is equally clear that these claims are being vigorously denied by the Respondents. It could not even be said under these circumstances that, while the essential dispute still subsists, Serbia and Montenegro is no longer seeking to have its claim determined by the Court. Serbia and Montenegro has not sought a discontinuance (see paragraph 32); and it has stated that it "wants the Court to continue the case and to decide upon its jurisdiction – and to decide on the merits as well, if it has jurisdiction". In the present circumstances, the Court is unable to find that Serbia and Montenegro has renounced any of its substantive or procedural rights, or has taken the position that the dispute between the Parties has ceased to exist. As for the argument based on the doctrine of estoppel, the Court does not consider that Serbia and Montenegro, by asking the Court "to decide on its jurisdiction" on the basis of certain alleged "new facts" about its own legal status vis-à-vis the United Nations,

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should be held to have forfeited or renounced its right of action and to be estopped from continuing the present action before the Court.

44. For all these reasons, the Court cannot remove the cases concerning Legality of Use of Force from the List, or take any decision putting an end to those cases in limine litis. In the present phase of the proceedings, it must proceed to examine the titles of jurisdiction asserted by the Applicant and the objections thereto advanced by the Respondents, and give its decision with respect to jurisdiction.

[pp. 339-340 S.O. Higgins] 12. Thus the real question is not whether the Applicant has or has not "discontinued" the case, nor whether the present circumstances are exactly identical to the few examples where the Court itself has removed a case from the List (examples which will, in their turn, have been "new" at the relevant time and not falling into any previously established category). The question is whether the circumstances are such that it is reasonable, necessary and appropriate for the Court to strike the case off the List as an exercise of inherent power to protect the integrity of the judicial process. I believe the answer is in the affirmative.

13. The starting point for discontinuance is Article 38, paragraph 2, of the Rules of Court, whereby the applicant "shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based". The Court may, in certain circumstances, allow these grounds of jurisdiction to be enlarged, and it may also occur that an applicant later prefers to proceed on the basis of one specified ground rather than another. Nonetheless, for all the flexibility built in to Article 38, paragraph 2, of the Rules, the obligation contained in it is a continuing one. An applicant which on Monday specifies two bases of jurisdiction for the case it wishes the Court to decide, and on Thursday informs the Court that these are not, after all, grounds on which it relies, cannot be said on Saturday to be in conformity with Article 38, paragraph 2. It has put itself out of conformity with Article 38, paragraph 2, and the fact that it at the same time declines to "discontinue" the case under Article 88 or 89 of the Rules is irrelevant to that fact.

14. No more is the position of the Applicant who resiled from specified heads of jurisdiction without proffering others rendered in compliance with the Rules by virtue of asking the Court

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"to decide on its jurisdiction" in the light of these changes of position (Judgment, para. 29). Such a request is totally outside of the contemplation of the Rules. Yet this is what has occurred in this case. On 24 April 1999 the then Federal Republic of Yugoslavia filed its Application instituting proceedings against various States, invoking as the basis of the Court’s jurisdiction Article 36, paragraph 2, of the Statute of the Court, as well as Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide. On 20 December 2002, Serbia and Montenegro formally stipulated that it was not a party to the Statute of the Court before 1 November 2000 − and that at the time of its initial Application, it was not bound by the Genocide Convention.

15. Having thus put itself in a position incompatible with Article 38, paragraph 2, of the Rules, Serbia and Montenegro did not inform the Court it was discontinuing the case under Article 89 of the Rules, but rather "asked the Court to decide on its jurisdiction". It was in fact in no position to make such a request of the Court, and these events alone are sufficient, in my view, for the Court to have used its inherent powers to ensure orderly conduct of its judicial function, and to have removed the cases from the List.

16. In the event, the disorderly nature of the course now being followed by Serbia and Montenegro was compounded. In response to its initial claims on the merits against the various respondent States, in the eight cases allowed to proceed by the Court beyond the initial hearings on provisional measures, Preliminary Objections were lodged. For the ensuing three years no response was made to these Objections − and indeed, when extremely brief Written Observations were eventually made, they did not even attempt to counter or otherwise respond to the substantive arguments contained in the Preliminary Objections of the Respondents. Instead, the Applicant resiled from its previously stated grounds of jurisdiction and simply suggested that "the Court decide". This incoherent manner of proceeding is not, in my view, compatible with sound judicial procedures, which are designed to be fair to all parties concerned, and it provided further grounds for which the appropriate response of the Court would have been to remove the cases from the List.

[p. 351 S.O. Kooijmans] 26. In view of the fact that the Applicant has failed to demonstrate, and has not even made an effort to demonstrate, that the Court has jurisdiction, I am of the

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opinion that the Court should have decided in limine litis to remove the eight cases from the General List.

3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE 3.1. General Questions

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Counter–Claims Order of 29 November 2001

[p. 680] 44. Whereas, at the conclusion of its Written Observations, the Congo submitted in the further alternative that: "it would not be appropriate, on the basis of considerations of expediency deriving from the requirements of the sound administration of justice, to join the Ugandan claims to the proceedings on the merits pursuant to Article 80, paragraph 3, of the Rules of Court"; and whereas the Court, having found that the first and second counter–claims submitted by Uganda are directly connected with the subject–matter of the Congo’s claims, takes the view that, on the contrary, the sound administration of justice and the interests of procedural economy call for the simultaneous consideration of those counter–claims and the principal claims;

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [p. 59 S.O. Koroma] 1. The Court in paragraph 46 of the Judgment acknowledged that, as a matter of legal logic, the question of the alleged violation of the immunities of the Minister for Foreign Affairs of the Democratic Republic of the Congo should be addressed only once there has been a determination in respect of the legality of the purported exercise of universal jurisdiction by Belgium. However, in the context of the present case and given the main legal issues in contention, the Court chose another technique, another method, of exercising its discretion in arranging the order in which it will respond when more than one issue has been submitted for determination. This technique is not only consistent with the jurisprudence of

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opinion that the Court should have decided in limine litis to remove the eight cases from the General List.

3. THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE 3.1. General Questions

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Counter–Claims Order of 29 November 2001

[p. 680] 44. Whereas, at the conclusion of its Written Observations, the Congo submitted in the further alternative that: "it would not be appropriate, on the basis of considerations of expediency deriving from the requirements of the sound administration of justice, to join the Ugandan claims to the proceedings on the merits pursuant to Article 80, paragraph 3, of the Rules of Court"; and whereas the Court, having found that the first and second counter–claims submitted by Uganda are directly connected with the subject–matter of the Congo’s claims, takes the view that, on the contrary, the sound administration of justice and the interests of procedural economy call for the simultaneous consideration of those counter–claims and the principal claims;

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [p. 59 S.O. Koroma] 1. The Court in paragraph 46 of the Judgment acknowledged that, as a matter of legal logic, the question of the alleged violation of the immunities of the Minister for Foreign Affairs of the Democratic Republic of the Congo should be addressed only once there has been a determination in respect of the legality of the purported exercise of universal jurisdiction by Belgium. However, in the context of the present case and given the main legal issues in contention, the Court chose another technique, another method, of exercising its discretion in arranging the order in which it will respond when more than one issue has been submitted for determination. This technique is not only consistent with the jurisprudence of

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the Court, but the Court is also entitled to such an approach, given the position taken by the Parties.

*

3.2. Procedure before a Chamber Dealing with a Particular Case (Article 26, Paragraph 2, of the Statute)

3.3. Judges ad hoc

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 [p. 101 S.O. Bula–Bula] 3. In doctrine, judges ad hoc have the particular duty of contributing to an objective and impartial establishment of the facts and of presenting the conception of the law held by each party to the dispute153. In Judge Lauterpacht’s view, an ad hoc judge has an obligation to « endeavour to ensure that, so far as is reasonble, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected – though not necessarily accepted – in any separate or dissenting opinion that he may write »154.

4. Fulfilment of such an obligatin does not in any sense assimilate a judge ad hoc to a representative of a State155. Further, his is in no sense a national representation but a « national presence »156, which is, moreover, a permanent one for the pemanent members of the Security Council. J. G. Merrills takes the view that the institution of judge ad hoc «provides an important link between the parties and the Court». In these circumstances, «the institution of the ad hoc judge, reflecting, as it does, ‘the incidence of metajuridical

153

Nguyen Quoc Dinh, Patrick Daillier and Alain Pellet, Droit international public, 1999, p. 855, para. 541; E. McWhinney, Les Nations Unies et la formation du droit, 1986, p. 150.

154

Judge Lauterpacht, separate opinion appended to the Order of 17 December 1997 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yougoslavia), C.I.J. Reports 1997, p. 278.

155

See the communication of E. Lauterpacht, «The Role of ad hoc judges», in Increasing the

156

See the commentary of Krzystof Skubiszewski, ibid., p. 378.

Effectiveness of the International Court of Justice, 1997, p. 374.

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considerations in the functioning of international adjudication’ is perhaps still too useful to be dispensed with»157.

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Judgment of 17 December 2002 [pp. 694-695 D.O. Franck] 10. … the ad hoc judge must always ensure that the appointing State’s arguments are fully addressed by the Court, whether or not they convince the majority of the judges. Between March 1948 (Corfu Channel (United Kingdom v. Albania)) and July 2002 (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)) there have been ad hoc judges in 45 cases and 53 phases of cases before this Court. Of these, 29 have written dissenting opinions, corresponding quite closely to the number of ad hoc judges appointed by losing parties. That, however, does not argue against the integrity of the institution of ad hoc judges. Rather, it demonstrates that, when a State is the losing party, the ad hoc judge it appointed has an even greater obligation to ensure that the Court’s judgment accurately and fully reflects the careful consideration given by the Court to the losing State’s representations. The drafting of the dissent attests to the richness of the Court’s collegial deliberative process.

11. The function of the dissent, therefore, is multiple. It assures the losing party that its arguments, far from being overlooked, were considered extensively by the entire Court. It facilitates the reasoned and balanced exchange of research and written views among the judges during the deliberative process. And, perhaps, it presents to the law’s universal market place of ideas certain principles of law and nuances of analysis which, even if not adopted in the instant case, may be of use in another, as yet unforeseen, context.

12. The ad hoc judge, like any other judge authoring a separate opinion, is accorded a sacred freedom. To be preserved, it must be used. As Judge ad hoc Bula–Bula has written, the ad hoc’s "traditional practice would seem to be characterized by its freedom" (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 100, para. 2, separate opinion of Judge ad hoc Bula-Bula). That freedom, of course,

157

J. G. Merrills, International Dispute Settlement, 3rd ed., 1998, p. 139.

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quite simply, is to write as one wills: to be the sole author of an opinion, unencumbered by a majority’s need, sometimes, to find common ground through compromise and creative ambiguity.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004

[p. 287] 18. By letter of 23 December 2003 the Registrar informed all the Parties to the cases concerning Legality of Use of Force of the Court’s decisions on the issues discussed at the meeting of 12 December 2003. The Agents were informed that the Court had decided, pursuant to Article 31, paragraph 5, of the Statute, that, taking into account the presence upon the Bench of judges of British, Dutch and French nationality, the judges ad hoc chosen by the respondent States should not sit during the current phase of the procedure in these cases; it was made clear to the Agents that this decision by the Court did not in any way prejudice the question whether, if the Court should reject the preliminary objections of the Respondents, judges ad hoc might sit in subsequent stages of the cases.

[pp. 417-420 S.O. Kreća] 67. … In the provisional measures phase the Court, acting on the objections raised by the Applicant relating to the nominations of judges ad hoc by four respondent States, settled for a succinct formulation that the nominations were "justified in the present phase of the case"158. The Court was somewhat more specific in the relevant decision relating to its own make-up in the preliminary objections phase. Even though, in contrast to the provisional measures phase, the Applicant raised no objections regarding the participation of judges ad hoc chosen by the respondent States. In deciding that "the judges ad hoc chosen by the respondent States should not sit during the current phase of the procedure" (CR 2004/6, p. 6), the Court invoked the fact of "the presence on the Bench of judges of British, Dutch and French nationality" (CR 2004/6, p. 6).

158

Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 130, para. 12; Legality of Use of Force (Yugoslavia v. Canada), Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 265, para. 12; Legality of Use of Force (Yugoslavia v. Italy), Order

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68. From the terse formulation relating to the acceptance of the nominations of judges ad hoc by four respondent States in the provisional measures phase one could infer that the Court, in adopting the decision that their nominations were justified, relied on the grammatical interpretation of the provision of Article 31, paragraph 3, of the Statute. Namely, Article 31, paragraph 3, provides that "[i]f the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge". In other words, the Court followed the logic that the independent and inherent right of a party to choose a judge ad hoc on the basis of Article 31, paragraph 3, of the Statute, was not subject to any particular restrictions in this particular case. The Applicant founded its objection to the nomination of the judges ad hoc by four respondent States on the contention that they are parties in the same interest and that, consequently, paragraph 5 of Article 31 of the Statute should have been applied. The Court, in its decision does not deal specifically with this contention of the Applicant, although the decision itself implies that the Court rejected it.

69. The absence of an explanation leaves room for assumptions. One of them, it seems to me, that merits attention rests on the interpretation of the expression "several parties in the same interest" (Statute, Article 31, paragraph 5). It has been said that "Article 31, which uses a form of wording in the singular, ‘applies separately to each case on the Court’s List’. ‘In the presence of two separate cases between two sets of parties (even if one party is common to both cases), Article 31, paragraph 5, has no application’." (H. Thirlway, "The Law and Procedure of the International Court of Justice, 1960-1989 (Part Eleven)", The British Year Book of International Law, 2000, p. 167; emphasis added, citing joint declaration of Judges Bedjaoui, Guillaume and Ranjeva in 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. 40.) It appears that the interpretation is far too narrow and, in the light of the meaning and in particular of the application of Article 31, paragraph 5, of the Statute, arbitrary because it implies an indissoluble organic link between "parties in the same interest" and formal joinder, which is obviously not the case. The Court may find that the parties are in the same interest without having recourse to joinder. Moreover, it is said that "the ‘same interest’ provision apply“ only "in the case of the choice of judges ad hoc" (G. Guillaume, "La ‘cause commune’ of 2 June 1999, I.C.J. Reports 1999 (I), p. 487, para. 12, Legality of Use of Force (Yugoslavia

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devant la Cour internationale de Justice", Liber Amicorum − Mohammed Bedjaoui, (Emile Yakpo and Tahar Boumedra, eds.), 1999, p. 330 [translation by the Registry]). The jurisprudence of the Court was also formed in this sense159. Consequently, the provision of Article 31, paragraph 5, of the Statute according to which the parties in the same interest shall be reckoned as one party only, cannot be understood as being tantamount to joinder. Although the same interest of the parties constitutes an element of the notion of joinder, taken per se it neither constitutes formal joinder nor can be considered identical to it. Joinder implies that the parties in the same interest are reckoned as one party in the totality of their procedural position which, in addition to the appointment of a single judge ad hoc includes also one set of pleadings and a single judgment. The parties in the same interest, in the sense of Article 31, paragraph 5, of the Statute, are reckoned as one party in a restricted, functional sense versus the process position of parties in its totality in the event of the issue of joinder, and that is the choice of judges ad hoc. The formulation according to which "several parties in the same interest ... shall ... be reckoned as one party only" (Statute, Art. 31, para. 5) is made not for the purpose of a joinder but "for the purpose of the preceding provisions" (Statute, Art. 31, para.5) of Article 31 regulating equalization of the parties before the Court. If we continue for a moment to use the terminology of joinder, we could possibly qualify the parties in the same interest, in the sense of Article 31, paragraph 5, of the Statute, as a kind of small or procedural joinder substantively and functionally linked with the choice of judges ad hoc on the basis of the provisions of Article 31 of the Statute of the Court.

70. The fundamental difference in the composition of the Court in the provisional measures phase as against the preliminary objections phase could be defended with the argument that in the provisional measures phase the Court was not in a position to ascertain the positions of the respondent States vis-à-vis the demands of the Applicant. The argument bears a certain weight but it should not be overestimated in this particular case for two reasons at least. Primo, the question of the composition of the Court is a matter of public order (in the Advisory Opinion case

v. Spain), Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 767, para. 12. 159

Exempli causa, “in the Fisheries Jurisdiction case, the Court did not join the cases, and rendered two distinct series of judgments, both on jurisdiction and on the merits. However, that did not prevent it from regarding the United Kingdom and Germany as being ‘in the same interest’ during the initial phase of the procedure. » (G. Guillaume, “La ‘cause commune’ devant la Cour internationale de Justice”, Liber Amicorum – Mohammed Bedjaoui, 1999, pp. 330, 334-335 [translation by the Registry]).

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concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (hereinafter referred to as "Namibia"), Vice-President Ammoun pointed out in his separate opinion that it relates to "the rule of ... very equality which the Statute seeks to safeguard through the institution of judges ad hoc" (I.C.J. Reports 1971, p. 68)) possessing "absolute logical priority" (ibid., p. 25, para. 36; see also Western Sahara, Order of 22 May 1975, I.C.J. Reports 1975, pp. 7-8; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 17-18, para. 13). Secundo, the indication for consideration of the same interest of the respondent States was provided in the Application itself which related to all the ten respondent States with identical statements of facts and law. The Application itself offered the basis for a prima facie appreciation of the facts and law for the treatment of "the appointment of a judge ad hoc ... as a preliminary matter" (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. 25, para. 36). Tertio, the urgency of the proceedings for interim measures could hardly be deemed to have been an obstacle to such proceedings in this particular case, because the proceedings for interim measures themselves lasted over 30 days, counting from the date of submission of the request to the date of the rendering of the order.

71. The decision regarding the composition of the Court in both phases, the provisional measures phase and the preliminary objections phase, was adopted informally, being intimated to the Parties by the Registrar. (The Court has thus departed from the practice established in the South West Africa cases (cf. Order of 18 March 1965, I.C.J. Reports 1965, p. 3) in which the decision about the composition of the Court was adopted in the form of an order.) This practice possessed certain inherent advantages, both formal and those of a substantive nature. As far as the formal advantages are concerned, it is difficult to understand that the issue of composition of the Court is regulated informally, at least when more delicate and controversial cases are in question, whereas issues, such as the appointment of experts of the Court (cf. Corfu Channel, Order of 19 November 1949, I.C.J. Reports 1949, p. 237; Delimitation of the Maritime Boundary in the Gulf of Maine Area, Appointment of Expert, Order of 30 March 1984, I.C.J. Reports 1984, p. 165), the appointment of experts to assist the parties to implement a judgment (cf. Frontier Dispute, Nomination of Experts, Order of 9 April 1987, I.C.J. Reports 1987, p. 7), or decisions on a request for an inspection in loco (cf.

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South West Africa, Order of 29 November 1965, I.C.J. Reports 1965, p. 9; GabčíkovoNagymaros Project (Hungary/Slovakia), Order of 5 February 1997, I.C.J. Reports 1997, p. 3) are dealt with through a formal order. Although there is no difference in the legal effect of decisions adopted informally or in the legal effect of those adopted in a formal manner, the manner in which a decision of the Court is embodied bears the meaning of an implicit evaluation of the issues being the object of the decision. This practice is all the more surprising having in mind that the question of the composition of the Court is not a purely procedural matter, but, in cases such as the case in hand, a matter of public order that indirectly concerns the principle of equality of States as one of the fundamental principles of international law which falls within corpus iuris cogentis. Also indisputable, it seems to me, are the substantive advantages of making decisions on the composition of the Court in a formal manner. They emanate from the very structure of the order, in particular from the special considerations that the Court had in mind making the order and reasons justifying a particular decision on the composition of the Court. Thus, an easier and more reliable interpretation of the decision of the Court is enabled and, equally important, a consolidation of jurisprudence of the Court on the matter.

3.4. The Submissions / Scope of the Dispute

Case Concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001

[pp. 96-97] 183. With regard to Bahrain's claim that it is entitled to the status of archipelagic State in the sense of the 1982 Convention on the Law of the Sea, the Court observes that Bahrain has not made this claim one of its formal submissions and that the Court is therefore not requested to take a position on this issue. What the Court, however, is called upon to do is to draw a single maritime boundary in accordance with international law. The Court can carry out this delimitation only by applying those rules and principles of customary law which are pertinent under the prevailing circumstances. The Judgment of the Court will have binding force between the Parties, in accordance with Article 59 of the Statute of the Court, and consequently

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could not be put in issue by the unilateral action of either of the Parties, and in particular, by any decision of Bahrain to declare itself an archipelagic State.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002

[pp. 15-16] 33. The third Belgian objection is put as follows: "That the case as it now stands is materially different to that set out in the [Congo]’s Application instituting proceedings and that the Court accordingly lacks jurisdiction in the case and/or that the application is inadmissible." .… 36. The Court notes that, in accordance with settled jurisprudence, it "cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character" (Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173; cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para. 80; see also Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 264–267, in particular paras. 69 and 70). However, the Court considers that in the present case the facts underlying the Application have not changed in a way that produced such a transformation in the dispute brought before it. The question submitted to the Court for decision remains whether the issue and circulation of the arrest warrant by the Belgian judicial authorities against a person who was at that time the Minister for Foreign Affairs of the Congo were contrary to international law. The Congo’s final submissions 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; see also Temple of Preah Vihear, Merits, Judgment, I.C.J. Reports 1962, p. 36). In these circumstances, the Court considers that Belgium cannot validly maintain that the dispute brought before the

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Court was transformed in a way that affected its ability to prepare its defence, or that the requirements of the sound administration of justice were infringed.

[pp. 18-19] 41. As a subsidiary argument, Belgium further contends that "[i]n the event that the Court decides that it does have jurisdiction in this case and that the application is admissible, ... the non ultra petita rule operates to limit the jurisdiction of the Court to those issues that are the subject of the [Congo]’s final submissions". ... 43. The Court would recall the well–established principle that "it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions" (Asylum, Judgment, I.C.J. Reports 1950, p. 402). While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case the Court may not rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable.

[pp. 49-50 D.O. Oda] 8. ... It is to be noted, firstly, that between filing its Application of 17 October 2000 and submitting its Memorial on 15 May 2001, the Congo restated the issues, changing the underlying subject–matter in the process. The Congo contended in the Application: (i) that the 1993 Belgian Law, as amended in 1999, violated the "principle that a State may not exercise [its authority] on the territory of another State" and the "principle of sovereign equality" and (ii) that Belgium’s exercise of criminal jurisdiction over Mr. Yerodia, then Minister for Foreign Affairs of the Congo, violated the "diplomatic immunity of the Minister for Foreign Affairs of a sovereign State". The alleged violations of those first two principles concern the question of "universal jurisdiction", which remains a matter of controversy within the international legal community, while the last claim

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relates only to a question of the "diplomatic immunity" enjoyed by the incumbent Minister for Foreign Affairs.

9. The Congo changed its claim in its Memorial, submitted seven months later, stating that "by issuing and internationally circulating the arrest warrant of 11 April 2000 against [Mr. Yerodia], Belgium committed a violation in regard to the DRC of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers" (Memorial of the Democratic Republic of the Congo of 15 May 2001, p. 64 [translation by the Registry]). Charging and arresting a suspect are clearly acts falling within the exercise of a State’s criminal jurisdiction. The questions originally raised - namely, whether a State has extraterritorial jurisdiction over crimes constituting serious violations of humanitarian law wherever committed and by whomever (in other words, the question of universal jurisdiction) and whether a Foreign Minister is exempt from such jurisdiction (in other words, the question of diplomatic immunity) - were transmuted into questions of the "issue and international circulation" of an arrest warrant against a Foreign Minister and the immunities of incumbent Foreign Ministers. This is clearly a change in subject–matter, one not encompassed in "the right to argue further the grounds of its Application", which the Congo reserved in its Application of 17 October 2000.

10. It remains a mystery to me why Belgium did not raise preliminary objections concerning the Court’s jurisdiction at the outset of this case. Instead, it admitted in its Counter–Memorial that there had been a dispute between the two States, one susceptible to judicial settlement by the Court, at the time the proceedings were instituted and that the Court was then seised of the case, as the Court itself finds (Judgment, paras. 27–28). Did Belgium view this as a case involving a unilateral application and the Respondent’s subsequent recognition of the Court’s jurisdiction, instances of which are to be found in the Court’s past? Belgium seems to have taken the position that once Mr. Yerodia had ceased to be Foreign Minister, a dispute existed concerning him in his capacity as a former Foreign Minister and contended that the Court lacked jurisdiction under those circumstances. Thus, Belgium also appears to have replaced the issues as they existed on the date of the Congo’s Application with those arising at a later date. It would appear that Belgium did not challenge the Court’s

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jurisdiction in the original case but rather was concerned only with the admissibility of the Application or the mootness of the case once Mr. Yerodia had been relieved of his duties as Foreign Minister (see Belgium’s four preliminary objections raised in its Counter–Memorial, referred to in the Judgment, paras. 23, 29, 33 and 37). In this respect, I share the view of the Court (reserving, of course, my position that a dispute did not exist) that the alleged dispute was the one existing in October 2000 (Judgment, para. 38) and, although I voted against paragraph 78 (1) (A) of the Judgment for the reasons set out in paragraph 1 of my opinion, I concur with the Court in rejecting Belgium’s objections relating to "jurisdiction, mootness and admissibility" in regard to the alleged dispute which Belgium believed existed after Mr. Yerodia left office. Certainly, the question whether a former Foreign Minister is entitled to the same privileges and immunities as an incumbent Foreign Minister may well be a legal issue but it is not a proper subject of the present case brought by the Congo in October 2000.

[p. 67 J.S.O. Higgins, Kooijmans, Buergenthal] 13. Thus the ultra petita rule can operate to preclude a finding of the Court, in the dispositif, on a question not asked in the final submissions by a party. But the Court should not, because one or more of the parties finds it more comfortable for its position, forfeit necessary steps on the way to the finding it does make in the dispositif. The Court has acknowledged this in paragraph 43 of the present Judgment. But having reserved the right to deal with aspects of universal jurisdiction in its reasoning, "should it deem this necessary or desirable", the Court says nothing more on the matter.

[p. 98 D.O. Al–Khasawneh] 7. The effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance. Therefore when this hierarchically higher norm comes into conflict with the rules on immunity, it should prevail. Even if we are to speak in terms of reconciliation of the two sets of rules, this would suggest to me a much more restrictive interpretation of the immunities of high–ranking officials than the Judgment portrays. Incidentally, such a restrictive approach would be much more in consonance with the now firmly–established move towards a restrictive concept of State immunity, a move that has removed the bar regarding the submission of States to jurisdiction of other States often expressed in the maxim par in parem non habet imperium. It is difficult

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to see why States would accept that their conduct with regard to important areas of their development be open to foreign judicial proceedings but not the criminal conduct of their officials.

[p. 111 S.O. Bula–Bula] 31. Did the Congo’s final submissions preclude the Court from ruling on the question of so-called universal jurisdiction?

32. It is true that the Congo’s « final submissions » make no mention whatever of this question. They seek to have the Court enforce the «rule of international customary law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers ; in so doing [the Respondent] violated the principle of sovereign equality among States»160.

33. The issue here is one of judicial procedure. Did the Applicant’s spectacular change of position on this point require the Court not to rule on so-called universal jurisdiction in the operative part of its Judgment ? Most definitely. It would have been criticized for ruling ultra petita. That is not the same as taking no collective position on the point. In any event, in so far as the Judgment’s reasoning failed to address this question, the opinions would do so.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002 [p. 488 S.O. Parra–Aranguren] 2. I have voted against point V (C), of the operative part of the Judgment where the Court: "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'."

3. The reasons for my dissent are the following:

160

See CR 2001/10, p. 26; emphasis added.

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4. Very recently, on 14 February 2002, the Court stated: "The Court would recall the well–established principle that ‘it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions’ (Asylum, Judgment, I.C.J. Reports 1950, p. 402). While the Court is thus not entitled o decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning." (Arrest Warrant of 11 April 2000, (Democratic Republic of Congo v. Belgium), Judgment, I.C.J. Reports 2002, pp. 18-19, para. 43.)

5. Neither Cameroon nor Nigeria has requested the Court in its submissions to take note of the commitment undertaken by Cameroon at the hearings that "it will continue to afford protection to Nigerians living in the [Bakassi] Peninsula". Therefore, in my opinion, the Court had to abstain from taking note of such commitment in the operative part of the Judgment, even though the Court is entitled to address it in its reasoning, as it did in paragraph 317 of the Judgment.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[pp. 213-214] 116. Iran presents one final argument against the admissibility of the United States counter–claim, which however it concedes relates only to part of the counter–claim. Iran contends that the United States has broadened the subject–matter of its claim beyond the submissions set out in its counter–claim by having, belatedly, added complaints relating to freedom of navigation to its complaints relating to freedom of commerce, and by having added new examples of breaches of freedom of maritime commerce in its Rejoinder in addition to the incidents already referred to in the Counter– Claim presented with the Counter–Memorial.

117. The issue raised by Iran is whether the United States is presenting a new claim. The Court is thus faced with identifying what is "a new claim" and what is merely "additional evidence relating to the original claim". It is well established in the Court’s jurisprudence

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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). In other words: "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" (Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173). 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.

118. 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 1" (ibid.). Subsequently to its Counter–Memorial and Counter–Claim and to that Order of the Court, the United States provided detailed particulars of further incidents substantiating, in its contention, its original claims. In the view of the Court, the United States has not, by doing so, transformed the subject of the dispute originally submitted to the Court, nor has it modified the substance of its counter–claim, which remains the same, i.e., alleged

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attacks by Iran on shipping, laying of mines and other military actions said to be "dangerous and detrimental to maritime commerce", thus breaching Iran’s obligations to the United States under Article X, paragraph 1, of the 1995 Treaty. The Court therefore cannot uphold the objection of Iran.

3.5. Preliminary Objections

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 420] 237. The Court would first observe that its finding in its Judgment of 11 June 1998 on the eighth preliminary objection of Nigeria that that preliminary objection did "not have, in the circumstances of the case, an exclusively preliminary character" (I.C.J. Reports 1998, p. 326, para. 118 (2)) requires it to deal now with the preliminary objection before proceeding further on the merits. That this is so follows from the 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.) (See 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, pp. 27–28, paras. 49–50; 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. 132– 134, paras. 48–49; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment (I.C.J. Reports 1986, p. 30, para. 40.) Since Nigeria maintains its objection, the Court must now rule on it.

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Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[pp. 28-29] 22. […] the present dispute has been brought before the Court by Mexico on the basis of the Vienna Convention and the Optional Protocol to that Convention. Article I of the Optional Protocol provides: "Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a Party to the present Protocol."

23. The United States has presented a number of objections to the jurisdiction of the Court, as well as a number of objections to the admissibility of the claims advanced by Mexico. It is however the contention of Mexico that all the objections raised by the United States are inadmissible as having been raised after the expiration of the time–limit laid down by the Rules of Court. Mexico draws attention to the text of Article 79, paragraph 1, of the Rules of Court as amended in 2000, which provides that "Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial." The previous text of this paragraph required objections to be made "within the time–limit fixed for delivery of the Counter–Memorial". In the present case the Memorial of Mexico was filed on 23 June 2003; the objections of the United States to jurisdiction and admissibility were presented in its Counter–Memorial, filed on 3 November 2003, more than four months later.

24. The United States has observed that, during the proceedings on the request made by

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Mexico for the indication of provisional measures in this case, it specifically reserved its right to make jurisdictional arguments at the appropriate stage, and that subsequently the Parties agreed that there should be a single round of pleadings. The Court would however emphasize that parties to cases before it cannot, by purporting to "reserve their rights" to take some procedural action, exempt themselves from the application to such action of the provisions of the Statute and Rules of Court (cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Order of 13 September 1993, I.C.J. Reports 1993, p. 338, para. 28). The Court notes, however, that Article 79 of the Rules applies only to preliminary objections, as is indicated by the title of the subsection of the Rules which it constitutes. As the Court observed in the Lockerbie cases, "if it is to be covered by Article 79, an objection must ... possess a ‘preliminary’ character," and "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’" (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), Preliminary Objections, I.C.J. Reports 1998, p. 26, para. 47; p. 131, para. 46); and the effect of the timely presentation of such an objection is that the proceedings on the merits are suspended (paragraph 5 of Article 79). An objection that is not presented as a preliminary objection in accordance with paragraph 1 of Article 79 does not thereby become inadmissible. 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. That is indeed what the United States has done in this case; and, for reasons to be indicated below, many of its objections are of such a nature that they would in any event probably have had to be heard along with the merits. The Court concludes that it should not exclude from consideration the objections of the United States to jurisdiction and admissibility by reason of the fact that they were not presented within three months from the date of filing

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of the Memorial.

[p. 84 S.O. Parra–Aranguren] 2. Operative paragraph 153 (1) of the Judgment: "Rejects the objection by the United Mexican States to the admissibility of the objections presented by the United States of America to the jurisdiction of the Court and to the admissibility of the Mexican claims."

3. In my opinion, the contention of the United Mexican States (hereinafter "Mexico") should have been upheld, because the Parties agreed to a single round of pleadings and nothing was said about preliminary objections. The United States of America (hereinafter "the United States") thus gave its consent not to raise preliminary objections, and consequently its objections were not to be examined as such. This reason explains my vote against paragraph 153, subparagraph 1, where the Court rejects Mexico’s contention that it should disregard the preliminary objections raised by the United States against Mexico’s claims based on violations by the United States of Article 36 of the 24 April 1963 Vienna Convention on Consular Relations (hereafter "the Vienna Convention").

[pp. 100-101 S.O. Sepúlveda] 3. The Court should have rejected, as untimely, the United States objections regarding the jurisdiction of the Court and the admissibility of Mexico’s Application. It is true that paragraph 1 of Article 79 of the Rules of the Court characterizes as preliminary an objection "the decision upon which is requested before any further proceedings". The effect of the timely presentation of such an objection is that the proceedings on the merits are suspended (Art. 79, para. 5). There is a general understanding that the United States did not submit a preliminary objection but then no other objection of any sort should have been recognized as suitable, if the text of Article 79, paragraph 1, of the Rules of Court is to be strictly interpreted and applied. The text states that "Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application ... shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial." The United States presented its objections to jurisdiction and admissibility far beyond the time–limit prescribed by the Rules of Court. More than four months elapsed before the United States provided to the Court a number of objections. Thus it is at least arguable that "An objection that is not presented as a preliminary objection in accordance with paragraph 1 of Article 79 does not thereby become inadmissible", and that a party "failing to

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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", as the Court has established (Judgment, para. 24). The basic issue relates to the interpretation of the above– quoted first phrase of Article 79, paragraph 1: "Any objection ..." Following a literal interpretation, any objection has to be submitted within a defined period of time, in accordance with the Rules of Court. The United States did not comply with such time–limit and its objections should have been rejected by the Court.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 261-262] 274. With regard to Uganda’s contention that the preliminary objections of the DRC are inadmissible because they failed to conform to Article 79 of the Rules of Court, the Court would observe that Article 79 concerns the case of an "objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits". It is inapplicable to the case of an objection to counter-claims which have been joined to the original proceedings. The Court notes that nonetheless, the DRC raised objections to the counter-claims in its Reply, i.e., the first pleading following the submission of Uganda’s Counter-Memorial containing its counterclaims.

275. In light of the findings above, the Court concludes that the DRC is still entitled, at this stage of the proceedings, to challenge the admissibility of Uganda’s counterclaims.

*

3.6. The Procedure in Default of Appearance

3.7. Evidence

Case Concerning Maritime Delimitation and Territorial

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Question between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001 [p. 191 J.D.O. Bedjaoui, Ranjeva and Koroma] 148. The existence of a collection of map evidence as extensive as that presented to the Court by Qatar, drawn from such varied sources and covering both the nineteenth and the twentieth centuries, cannot fail to be significant. Where this evidence gives a virtually uniform description of the political and geographical situation of Qatar and Bahrain over such a long period, it is impossible not to accord it substantial weight in confirming the existence of a title which Qatar possesses to the Hawar Islands (and to Zubarah as well). It is in any event impossible to ignore that evidence completely, as the Court's Judgment does, without providing any explanation.

[pp. 274-275 D.O. Torres Bernárdez] 37. The weight of maps as evidence depends on a range of considerations such as their technical reliability and accuracy determined by how and when they were drawn up, their official or private character, the neutrality of their sources towards the dispute in question and the parties to that dispute, etc. In general, the value as evidence attached to them by international courts and tribunals is corroborative or confirmatory of conclusions arrived at by other means unconnected with the maps, because the maps as such are not a legal title. However, if map evidence produced by third parties is reliable, uniform and voluminous it may even constitute a highly important evidential element, of recognition or general opinion or repute, as to the fact of a territorial situation in a given period (see, for example, Chapter VIII of the 1998 Arbitral Award in the Eritrea/Yemen Arbitration).

38. Moreover, maps may on occasion be a physical expression of the will of a State or States, for example, when annexed to a legal title such as a treaty, or when prepared and used by a State for the purpose of diplomatic negotiations with other States, or when they are the object of written annotations by States' representatives or officials. In any case, maps expressing the will of States have of course superior evidenciary weight to ordinary maps. Moreover, when annexed to a treaty, maps constitute a context for the interpretation of the treaty concerned. There are some maps belonging to these categories in the present case. In its Judgment in the Frontier Dispute case, the Chamber of the Court distinguishes between these two categories of maps as follows:

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39. The Judgment remains somewhat aloof from the map evidence submitted by the Parties and this has been quite detrimental to Qatar because the Bahraini map evidence was practically nil. Even as regards the maritime aspect of the case, it was Qatar not Bahrain which provided the Court with large–scale charts officially recognized by maritime Powers such as the United Kingdom and the United States, Bahrain limiting itself to submitting sketches (which Bahrain refers to as "maps") drawn by itself and without any indication of an official source.

[p. 277 D.O. Torres Bernárdez] 47. ... [T]he State which claims an island in the territorial sea of another State must prove its title over that island, and must also prove that the alleged title is likely to supplant the title of the coastal State derived from the said presumption of international law and/or other possible legal principles and rules.

48. The burden of proof against a juris tantum presumption lies with the Party that alleged a contrary proposition. One of the greatest legal inadequacies of the 1938–1939 British "procedure" on the Hawar Islands was precisely to have been conceived and organized the other way round. It does not make sense unless one takes account of the prior British "provisional decision" of 1936. It was through that initial and then undisclosed "provisional decision" that the juris tantum presumption of international law referred to was actually

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ignored. Thus, in this opinion, we will refer to the British "procedure" of the 1930s as a whole, namely to the whole "1936–1939 period".

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[p. 189] 57. 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.

[p. 195] 71. As in the case of the attack on the Sea Isle City, the first question is whether the United States has discharged the burden of proof that the USS Samuel B. Roberts was the victim of a mine laid by Iran. The Court notes that mines were being laid at the time by both belligerents in the Iran–Iraq war, so that evidence of other minelaying operations by Iran is not conclusive as to responsibility of Iran for this particular mine. In its communication to the Security Council in connection with the attack of 18 April 1988, the United States alleged that "The mines were laid in shipping lanes known by Iran to be used by U.S. vessels, and intended by them to damage or sink such vessels". Iran has claimed that it laid mines only for defensive purposes in the Khor Abdullah Channel, but the United States has submitted evidence suggesting that Iran’s mining operations were more extensive. The main evidence that the mine struck by the USS Samuel B. Roberts was laid by Iran was the discovery of moored mines in the same area, bearing serial numbers matching other Iranian mines, in particular those found aboard the vessel Iran Ajr. This evidence is highly suggestive, but not conclusive.

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[pp. 233-234 S.O. Higgins] 30. … In its examination of Article XX, paragraph 1 (d), the Court asserts that the United States has the "burden of proof of the existence of an armed attack" such as to justify it using force in self–defence (Judgment, para. 61). Leaving aside for the moment whether this is indeed the right legal test, it may immediately be noted that neither here nor elsewhere does the Court explain the standard of proof to be met. That a litigant seeking to establish a fact bears the burden of proving it is a commonplace, well–established in the Court’s jurisprudence (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). But in a case in which so very much turns on evidence, it was to be expected that the Court would clearly have stated the standard of evidence that was necessary for a party to have discharged its burden of proof.

31. As to standard of proof in previous cases, the Court’s prime objective appears to have been to retain a freedom in evaluating the evidence, relying on the facts and circumstances of each case (see Kazazi, Burden of Proof and Related Issues: A Study on Evidence before International Tribunals, 1996, at p. 323; Sandifer, "Evidence before International Courts" in Volume 25, Acta Scandinavica Juris Gentium, 1955, at p. 45).

32. In Corfu Channel, the Court simultaneously rejected evidence "falling short of conclusive evidence" (Merits, Judgment, I.C.J. Reports 1949, p. 17); and referred to the need for "a degree of certainty" (ibid., p. 17). In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court did not even attempt to articulate the standard of proof it relied on, merely holding from time to time that it found there was "insufficient" evidence to establish various points (Merits, Judgment, I.C.J. Reports 1986, p. 37, para. 54; p. 62, para. 110; p. 85, para. 159; p. 86, para. 159; p. 113, para. 216).

33. Beyond a general agreement that the graver the charge the more confidence must there be in the evidence relied on, there is thus little to help parties appearing before the Court (who already will know they bear the burden of proof) as to what is likely to satisfy the Court. Other judicial and arbitral tribunals have of necessity recognized the need to engage in this legal task themselves, in some considerable detail (for example, Prisoners of War, Eritrea’s Claim 17, Eritrea and Ethiopia, Eritrea Ethiopia Claims Commission, Partial Award of 1 July 2003, at paras. 43–53; Velásquez Rodríguez case, Judgment of 29 July 1988, Inter–American Court of

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Human Rights, paras. 127–139). The principal judicial organ of the United Nations should likewise make clear what standards of proof it requires to establish what sorts of facts. Even if the Court does not wish to enunciate a general standard for non–criminal cases, it should in my view, have decided, and been transparent about, the standard of proof required in this particular case.

[pp. 285-287 S. O. Buergenthal] 38. Thus, even if one were to adopt the Court’s view that "in the present case, the question whether the measures taken were ‘necessary’ overlaps with the question of their validity as acts of self–defence", it would be improper to analyse the evidence adduced by the United States in support of its measures exclusively in light of their validity as acts of self–defence, without recognizing that in Article XX, paragraph 1 (d), the parties opted, not for a rigid or absolute assessment of the evidence, but for an examination of the evidence that asked whether, on the facts before it, a party had convincing reasons for believing that the measures were necessary to protect its essential security interests. This analysis would permit the Court to view the evidence before it in this case in a much more nuanced way and to assess the actions of the United States with the flexibility Article XX, paragraph 1 (d), appears to demand. By not adopting this approach in the instant case, the Court, for all practical purposes, reads Article XX, paragraph 1 (d), out of the Treaty and then proceeds to assess the evidence as if Article XX, paragraph 1 (d), did not exist.

39. That this is in fact what the Court does, is readily apparent from the evidentiary approach it adopts. Thus, in paragraph 57 of the Judgment, the Court concludes that: "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 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."

40. This test takes no account of the facts as they might reasonably have been assessed by the United States before it decided to act, given the context of the Iraq–Iran armed conflict and Iran’s consistent denial that it was not responsible for any military actions against neutral

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shipping. Article XX, paragraph 1 (d), as interpreted in the Nicaragua case, would have required such a contextual analysis of the evidence. 41. One might ask, moreover, where the test of "insufficient" evidence comes from (see para. 39, supra) and by reference to what standards the Court applies it? What is meant by "insufficient" evidence? Does the evidence have to be "convincing", "preponderant", "overwhelming" or "beyond a reasonable doubt" to be sufficient? The Court never spells out what the here relevant standard of proof is. Moreover, it may well be that each of the pieces of proof the United States adduces, if analysed separately, as the Court does, (see, e.g., Judgment, paras. 58 et seq.) may not be sufficient to prove that the missile was fired by Iran. Taken together, however, they may establish that it was not unreasonable for the United States to assume that it was fired by Iran, particularly since Iran, in the face of overwhelming evidence that it was responsible for at least some attacks on neutral shipping, denied all such responsibility. A proper application of Article XX, paragraph 1 (d), of the Treaty would have required the Court to take these considerations into account.

[p. 321 S.O. Owada] 45. It goes without saying as a basic starting point in this context that a fundamental principle on evidence actori incumbit onus probandi should apply in the present case as well. Thus, the onus of proof to establish these relevant facts inevitably lies with the Party which claims the existence of these facts (i.e., the Respondent) as the basis for the defence of its actions complained of by the Applicant. On this basis, it must be said that the Respondent has failed to discharge this burden of proof to the satisfaction of the Court. To this extent, I concur with the conclusion on this specific point reached by the Judgment.

46. Nevertheless, there is no denying the fact that there undoubtedly exists an asymmetry in the situation surrounding this case as described above, in terms of producing evidence for discharging the burden of proof, between the position of the Applicant in its claim against the Respondent and the position of the Respondent in its defence against the Applicant. I am prepared to accept that this asymmetry is inherent in the circumstances of the present case and that there is little the Court can do under the circumstances. It is primarily the task incumbent upon the party which claims certain facts as the basis of its contention to establish them by producing sufficient evidence in accordance with the principle actori incumbit onus probandi.

47. Accepting as given this inherent asymmetry that comes into the process of discharging the

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burden of proof, it nevertheless seems to me important that the Court, as a court of justice whose primary function is the proper administration of justice, should see to it that this problem relating to evidence be dealt with in such a way that utmost justice is brought to bear on the final finding of the Court and that the application of the rules of evidence should be administered in a fair and equitable manner to the parties, so that the Court may get at the whole truth as the basis for its final conclusion. It would seem to me that the only way to achieve this would have been for the Court to take a more proactive stance on the issue of evidence and that of fact finding in the present case.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004

[pp. 40-42] 54. The Parties disagree as to what each of them must show as regards nationality in connection with the applicability of the terms of Article 36, paragraph 1, and as to how the principles of evidence have been met on the facts of the cases.

55. Both Parties recognize the well–settled principle in international law that a litigant seeking to establish the existence of a fact bears the burden of proving it (cf. 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). Mexico acknowledges that it has the burden of proof to show that the 52 persons listed in paragraph 16 above were Mexican nationals to whom the provisions of Article 36, paragraph 1 (b), in principle apply. It claims it has met this burden by providing to the Court the birth certificates of these nationals, and declarations from 42 of them that they have not acquired U.S. nationality. Mexico further contends that the burden of proof lies on the United States should it wish to contend that particular arrested persons of Mexican nationality were, at the relevant time, also United States nationals.

56. The United States accepts that in such cases it has the burden of proof to demonstrate United States nationality, but contends that nonetheless the "burden of

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evidence" as to this remains with Mexico. This distinction is explained by the United States as arising out of the fact that persons of Mexican nationality may also have acquired United States citizenship by operation of law, depending on their parents’ dates and places of birth, places of residency, marital status at time of their birth and so forth. In the view of the United States "virtually all such information is in the hands of Mexico through the now 52 individuals it represents". The United States contends that it was the responsibility of Mexico to produce such information, which responsibility it has not discharged.

57. The Court finds that it is for Mexico to show that the 52 persons listed in paragraph 16 above held Mexican nationality at the time of their arrest. The Court notes that to this end Mexico has produced birth certificates and declarations of nationality, whose contents have not been challenged by the United States. The Court observes further that the United States has, however, questioned whether some of these individuals were not also United States nationals. Thus, the United States has informed the Court that, "in the case of defendant Ayala (case No. 2) we are close to certain that Ayala is a United States citizen", and that this could be confirmed with absolute certainty if Mexico produced facts about this matter. Similarly Mr. Avena (case No. 1) was said to be "likely" to be a United States citizen, and there was "some possibility" that some 16 other defendants were United States citizens. As to six others, the United States said it "cannot rule out the possibility" of United States nationality. The Court takes the view that it was for the United States to demonstrate that this was so and to furnish the Court with all information on the matter in its possession. In so far as relevant data on that matter are said by the United States to lie within the knowledge of Mexico, it was for the United States to have sought that information from the Mexican authorities. The Court cannot accept that, because such information may have been in part in the hands of Mexico, it was for Mexico to produce such information. It was for the United States to seek such information, with sufficient specificity, and to demonstrate both that this was done and that the Mexican authorities declined or failed to respond to such specific requests. At no stage, however, has the United States shown the Court that it made specific enquiries of those

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authorities about particular cases and that responses were not forthcoming. The Court accordingly concludes that the United States has not met its burden of proof in its attempt to show that persons of Mexican nationality were also United States nationals.

[pp. 75-76 Decl. Ranjeva] 4. On reflection, it is apparent that the United States objection raises a question of principle. Can a complaint be made that the other party has failed to produce evidence if the Court has not previously requested it to do so? Traditionally, in the context of procedural law, the basic principle was enshrined in the maxim nemo contra se edere tenetur (no one is bound to give evidence against himself). However, in terms of the Rules of Court, this principle does not appear to have been construed strictly. Article 62, paragraph 1, of the Rules confers on the Court full discretionary powers in respect of evidence gathering. If the Court decides to grant a respondent’s request, it may order the other party to produce evidence. The following precedent provides support for this interpretation: “the PCIJ responded favourably to an Agent who requested the Court to ask the other party to produce an administrative document in support of the interpretation of a certain conception of administrative law which he had expounded before the Court. The Court, after deliberation, decided to comply with this request.” (Geneviève Guyomar, Commentaire du Règlement de la Cour internationale de Justice, 1983, p. 411, referring to P.C.I.J. Series E, No. 8, p. 268.)

5. It should be noted, however, that the Court cannot impose any sanction for failure to produce evidence, other than the inferences it may draw from such abstention or refusal. In the Corfu Channel case, the evidence requested by the Court was refused by the party in question: “It is not therefore possible to know the real content of these naval orders. The Court cannot, however, draw from this refusal to produce the orders any conclusion differing from those to which the actual events gave rise.” (Merits, Judgment, I.C.J. Reports 1949, p. 32.)

6. In the absence of any obligation capable of impugning the freedom of action of the parties in relation to the production of evidence, the Court’s only means of establishing the truth is its own power of determination. That limitation explains the purely factual nature of the analysis in paragraphs 56 and 57.

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[p. 86 S.O. Parra–Aranguren] 10. … paragraph 57 of the Judgment states: "The Court finds that it is for Mexico to show that the 52 persons listed in paragraph 16 above held Mexican nationality at the time of their arrest. The Court notes that to this end Mexico has produced birth certificates and declarations of nationality, whose contents have not been challenged by the United States."

11. It is difficult for me to agree with this conclusion because Mexico has not discharged its burden of proof. The declarations from 42 of all the persons concerned are ex parte documents, which cannot, by themselves, demonstrate Mexican nationality; and the birth certificates presented by Mexico for each of the 52 individuals undoubtedly demonstrate that they were born in Mexico, but do not prove their Mexican nationality because Mexico did not provide the text of Article 30 of the Mexican Constitution. In view of this omission it cannot be established, from the evidence presented by Mexico, that the 52 persons identified in its Memorial automatically acquired Mexican nationality at the time of their birth by virtue of the ius soli. For this reason, unless I were to rely on extralegal considerations, as the Judgment itself does, I had no alternative but to conclude that the claims presented by Mexico against the United States cannot be upheld since the Mexican nationality of the 52 persons concerned was not demonstrated and this is, in the present case, a necessary condition for the application of Article 36 of the Vienna Convention and for Mexico’s exercise of its right to diplomatic protection of its nationals. Therefore, in my opinion, subparagraphs (4), (5), (6), (7), (8) and (9) of paragraph 153 were to be rejected.

Case Concerning the Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005

[pp. 119-120] 44. The Chamber would recall here the terms in which the probative value of maps was described in the Judgment rendered in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali): "maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic

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legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts." (I.C.J. Reports 1986, p. 582, para. 54.) In other words, "except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of a rebuttable or juris tantum presumption such as to effect a reversal of the onus of proof." (Ibid., p. 583, para. 56.) This principle will also guide the Chamber in its assessment of the maps relied on by the Parties in the present case.

[pp. 147-148] 138. Finally, the Chamber is bound to note that the cartographic material in the file clearly confirms that, certainly from 1926-1927, the Mekrou was generally regarded as the intercolonial boundary by all the administrative authorities and institutions of the colonial Power. Certainly, maps − unless they are annexed to an administrative instrument, and hence form an integral part thereof, which is not the case here − possess only the relative force conferred upon them by the jurisprudence recalled above (see paragraph 44). However, in the present case the cartographic evidence may be regarded as confirming and reinforcing the conclusions flowing from an analysis of the above-mentioned regulative texts. The same applies notably to the map prepared and published in October 1926 by the AOF Geographical Service (known as the "Blondel la Rougery

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map"), to the map entitled "New Boundary of Haute-Volta and Niger (according to the erratum of 5 October 1927 to the arrêté of 31 August 1927)" and to the DahomeyTogo roadmap prepared by the AOF Geographical Service in 1938 (see paragraph 42 above).

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 200-201] 57. In accordance with its practice, the Court will first make its own determination of the facts and then apply the relevant rules of international law to the facts which it has found to have existed. The Court will not attempt a determination of the overall factual situation as it applied to the vast territory of the DRC from August 1998 till July 2003. It will make such findings of fact as are necessary for it to be able to respond to the first submission of the DRC, the defences offered by Uganda, and the first submissions of Uganda as regards its counter-claims. It is not the task of the Court to make findings of fact (even if it were in a position to do so) beyond these parameters.

58. 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.

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59. 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. 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).

60. Both Parties have presented the Court with a vast amount of documentation. The documents advanced in supporting findings of fact in the present case include, inter alia, resolutions of the United Nations Security Council, reports of the Special Rapporteur of the Commission on Human Rights, reports and briefings of the OAU, communiqués by Heads of State, letters of the Parties to the Security Council, reports of the Secretary-General on MONUC, reports of the United Nations Panels of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (hereinafter "United Nations Panel reports"), the White Paper prepared by the Congolese Ministry of Human Rights, the Porter Commission Report, the Ugandan White Paper on the Porter Commission Report, books, reports by non-governmental organizations and press reports.

61. 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

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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.

[p. 203] 65. … 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.).

[p. 204] 68. … 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 Tehran, Judgment, I.C.J. Reports 1980, p. 10, para. 13), but that particular caution should be shown in this area. The Court observes that this requirement of consistency and concordance is not present in the journalistic accounts.

[p. 206] 78. The Court finds that most evidence of events in this period is indirect and less reliable than that which emerges from statements made under oath before the Porter Commission. 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,

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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.

[p. 239] 206. The Court first turns to the DRC’s claims that the Ugandan armed forces caused loss of life to the civilian population, committed acts of torture and other forms of inhumane treatment, and destroyed villages and dwellings of civilians. The Court observes that the report of the Special Rapporteur of the Commission on Human Rights of 18 January 2000 (E/CN/4/2000/42, para. 112) refers to massacres carried out by Ugandan troops in Beni on 14 November 1999. The Secretary-General in his Third report on MONUC concluded that Rwandan and Ugandan armed forces "should be held accountable for the loss of life and the property damage they inflicted on the civilian population of Kisangani" (doc. S/2000/566 of 12 June 2000, para. 79). Security Council resolution 1304 (2000) of 16 June 2000 deplored "the loss of civilian lives, the threat to the civilian population and the damage to property inflicted by the forces of Uganda and Rwanda on the Congolese population". Several incidents of atrocities committed by Ugandan troops against the civilian population, including torture and killings, are referred to in the report of the Special Rapporteur of the Commission on Human Rights of 1 February 2001 (E/CN/4/2001/40, paras. 112, 148151). MONUC’s special report on the events in Ituri, January 2002-December 2003 (doc. S/2004/573 of 16 July 2004, paras. 19, 42-43, 62) contains much evidence of direct involvement by UPDF troops, in the context of the Hema-Lendu ethnic conflict in Ituri, in the killings of civilians and the destruction of their houses. In addition to particular incidents, it is stated that "[h]undreds of localities were destroyed by UPDF and the Hema South militias" (para. 21); "UPDF also carried out widespread bombing and destruction of hundreds of villages from 2000 to 2002" (para. 27).

207. The Court therefore finds the coincidence of reports from credible sources sufficient to convince it that massive human rights violations and grave breaches of international humanitarian law were committed by the UPDF on the territory of the DRC.

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[pp. 297-298 S.O. Parra-Aranguren] 21. Paragraph 130 of the Judgment states "that it has not been presented with evidence that can safely be relied on in a court of law to prove that there was an agreement between the DRC and the Sudan to participate in or support military action against Uganda; or that any action by the Sudan (of itself factually uncertain) was of such a character as to justify Uganda’s claim that it was acting in self-defence".

22. In this respect I wish to make reference to the statement by the Chief Prosecutor on the Uganda arrest warrants, dated 14 October 2005, because it is in the public domain and the Court may ascertain its terms. The statement announces that the pre-trial Chamber II of the International Criminal Court has unsealed five warrants of arrest in the Uganda situation, because it considered there to be sufficient evidence that the concerned persons have committed crimes against humanity and war crimes; it is recalled therein that the Lord’s Resistance Army (LRA) has killed, abducted, enslaved and raped the people of northern Uganda for 19 years, that more than 50 missions were made to Uganda, in small groups of two or three, to investigate the situation, and that among other facts, it was established that Joseph Kony is the absolute leader of the LRA and that he directs all of the LRA operations from his bases in the Sudan.

[pp. 361-382 D.O. Kateka] 2. The Court enjoys freedom and flexibility with regard to the consideration of evidence. In this case, as the Court acknowledges, both Parties have presented it with a vast amount of evidentiary materials. It has therefore to assess the probative value of the documents and eliminate from further consideration those it deems unreliable. This is not an easy task, as it calls for choice. In this exercise of choice, a judge is guided by an "inner conviction" (inevitably influenced by one’s background and experience), which should prick the conscience so that one lives up to the requirement of Article 20 of the Court’s Statute. As judge ad hoc, I am mindful of the words of Judge Lauterpacht that I am bound to exercise my function impartially and conscientiously while also discharging the special obligation to endeavour to ensure, so far as is reasonable, that argument in favour of the Party that appointed me "is reflected – though not necessarily accepted – in [this] dissenting opinion" (Application of the Convention on the Prevention and Punishment of the

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Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 409, para. 6). 3. In my view, the Court has not been even-handed in its treatment of the materials submitted by the two Parties. For example, the Court terms as "a bundle of news reports of variable reliability" (Judgment, paragraph 136), which the Court does not find weighty and convincing. This is evidence adduced by Uganda to establish the Sudan’s involvement in aiding antiUgandan elements in the DRC. This is a whole set of over 140 documents, which is published in Volume IV of the DRC’s Reply. Earlier, in paragraph 68 of the Judgment, the Court regards as "an interested source" and rejects evidence proffered by the DRC from the same volume in the context of the Kitona airborne operation. This being the case, one would expect the Court to regard it as a case of "statement against interest" and treat favourably the documents from the same volume that Uganda relies upon.

[p. 374 D.O. Kateka] 42. The Court has found that Uganda, by the conduct of its armed forces, which committed acts of killing, torture and other forms of abuses, failed to discriminate between civilian and military targets and to protect the civilian population, trained child soldiers, incited ethnic conflict and failed to take measures to end such conflict; as well as by its failure as the occupying Power to take measures to respect and ensure respect for human rights and international humanitarian law in the district of Ituri, violated its obligations under international human rights law and international humanitarian law.

43. I have voted against this over-arching finding which mixes up several issues. The finding contains serious accusations against Uganda. As such a higher standard of proof is required: "A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here." (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 17.) It would also seem pertinent to cite the observation by Judge Higgins in her separate opinion in the Oil Platforms case: "Beyond a general agreement that the graver the charge the more confidence must there be in the evidence relied on, there is thus little to help parties appearing before the Court (who already will know they bear the burden of proof) as to what is likely to satisfy the Court." (Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 234, para. 33.)

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3.8. Duty of the Court to Seek Further Clarification

3.9. Relevant Facts

Case Concerning the Frontier Dispute (Benin v. Niger), Judgment of 12 July 2005 [p. 110] 28. The Parties both acknowledge that, in accordance with the principle of uti possidetis juris, the course of the frontier and the attribution of islands in the River Niger to either one of them must be determined in the light of French colonial law, known as "droit d’outre-mer". They also agree on the identification of the relevant rules of that law, but do not share the same interpretation thereof. Before turning to those rules, the Chamber would recall that, when reference is made to domestic law in such a context, that law is applicable "not in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of ... the ‘colonial heritage’" (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 568, para. 30).

3.10. Provisional Measures 3.10.1. General Questions

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[pp. 483-484] 44. Germany asserts that the Court's Order of 3 March 1999 was intended to "enforce" the rights enjoyed by Germany under the Vienna Convention and "preserve those rights pending its decision on the merits". Germany claims that a dispute as to "whether the United States were obliged to comply and did comply with the Order" necessarily arises out of the interpretation or application of the Convention and thus falls within the jurisdiction of the Court. Germany argues further that questions "relating to the non–compliance with a decision of the Court under Article

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41 para. 1 of the Statute, e.g. Provisional Measures, are an integral component of the entire original dispute between the parties". Moreover, Germany contends that its third submission also implicates "in an auxiliary and subsidiary manner ... the inherent jurisdiction of the Court for claims as closely interrelated with each other as the ones before the Court in the present case".

45. The third submission of Germany concerns issues that arise directly out of the dispute between the Parties before the Court over which the Court has already held that it has jurisdiction (see paragraph 42 above), and which are thus covered by Article I of the Optional Protocol. The Court reaffirms, in this connection, what it said in its Judgment in the Fisheries Jurisdiction case, where it declared that in order to consider the dispute in all its aspects, it may also deal with a submission that "is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject–matter of that Application. As such it falls within the scope of the Court's jurisdiction ..." (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). 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.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Request for the Indication of Provisional Measures Order of 5 February 2003

[pp. 90-91] 52. Whereas, however, Mexico argues that 54 of its nationals have been sentenced to death following proceedings that allegedly violated the obligations incumbent on the United States under Article 36, paragraph 1 (b), of the Vienna Convention; whereas Mexico provides a list of those nationals and some information relating to their respective cases; whereas it adds that three of them have had their sentences commuted; whereas at the oral proceedings its Agent requested that the United States be ordered "to refrain from fixing any date for execution and from

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carrying out any execution in the case of the 51 Mexican nationals covered by the Application, until the Court has been able to decide on the merits of the case";

53. Whereas the United States argues that no execution date has been scheduled with respect to any of the Mexican nationals concerned (see paragraph 31 above); whereas it points out that this is so both for the three individuals specifically named in its request for the indication of provisional measures and in regard to the others; whereas it observes that, in the case of these latter, "any execution date is even more remote"; and whereas it accordingly concludes that the request for the indication of provisional measures is thus premature;

54. 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); whereas, moreover, the Supreme Court of the United States observed, when considering a petition seeking the enforcement of an Order of this Court, that: "It is unfortunate that this matter came before us while proceedings are pending before the ICJ that might have been brought to that court earlier" (Breard v. Greene, 523 US 371, 378 (1998)); whereas, in view of the rules and time–limits governing the granting of clemency and the fixing of execution dates in a number of the states of the United States, the fact that no such dates have been fixed in any of the cases before the Court is not per se a circumstance that should preclude the Court from indicating provisional measures;

55. Whereas it is apparent from the information before the Court in this case that three Mexican nationals, Messrs. César Roberto Fierro Reyna, Roberto Moreno Ramos and Osvaldo Torres Aguilera, are at risk of execution in the coming months, or possibly even weeks; whereas their execution would cause irreparable prejudice to any rights that may subsequently be adjudged by the Court to belong to Mexico; and whereas the Court accordingly concludes that the circumstances require that it indicate provisional measures to preserve those rights, as Article 41 of its Statute provides;

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56. Whereas the other individuals listed in Mexico’s Application, although currently on death row, are not in the same position as the three persons identified in the preceding paragraph of this Order; whereas the Court may, if appropriate, indicate provisional measures under Article 41 of the Statute in respect of those individuals before it renders final judgment in this case;

Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003

[p. 107] 22. Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; whereas it follows that the Court must concern itself with the preservation by such measures of the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent; and whereas such measures are justified solely if there is urgency;

[p. 111] 39. 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/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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Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003

[pp. 108-109] 27. Whereas at the hearings the Congo re–emphasized the irreparable prejudice which in its contention would result from the continuation of the French criminal proceedings before the Tribunal de grande instance of Meaux, in the same terms as in the request; whereas the Congo further stated that the prejudice which would result if no provisional measures are indicated would be the continuation and exacerbation of the prejudice already caused to the honour and reputation of the highest authorities of the Congo, and to internal peace in the Congo, to the international standing of the Congo and to Franco–Congolese friendship;

28. Whereas the Court observes that the rights which, according to the Congo’s Application, are subsequently to be adjudged to belong to the Congo in the present case are, first, the right to require a State, in this case France, to abstain from exercising universal jurisdiction in criminal matters in a manner contrary to international law, and second, the right to respect by France for the immunities conferred by international law on, in particular, the Congolese Head of State;

29. Whereas the purpose of any provisional measures that the Court might indicate in this case should be to preserve those claimed rights; whereas the irreparable prejudice claimed by the Congo and summarized in paragraph 27 above would not be caused to those rights as such; whereas however this prejudice might, in the circumstances of the case, be regarded as such as to affect irreparably the rights asserted in the Application; whereas in any event the Court notes that it has not been informed in what practical respect there has been any deterioration internally or in the international standing of the Congo, or in Franco–Congolese relations, since the institution of the French criminal

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proceedings, nor has any evidence been placed before the Court of any serious prejudice or threat of prejudice of this nature;

[pp. 109-110] 30. Whereas the first question before the Court at the present stage of the case is whether the criminal proceedings currently pending in France entail a risk of irreparable prejudice to the right of the Congo to respect by France for the immunities of President Sassou Nguesso as Head of State, such as to require, as a matter of urgency, the indication of provisional measures;

31. Whereas at the hearings France drew the Court’s attention to Article 656 of the French Code of Criminal Procedure, which provides that "the written deposition of the representative of a foreign power is to be requested through the Minister for Foreign Affairs", and continues by providing for the procedure to be followed "if this request is accepted", i.e., accepted by the foreign power; whereas France contends that this is the only means whereby President Sassou Nguesso, who according to France is included in the category of a "representative of a foreign power", might be approached to give evidence in the pending criminal proceedings, that his evidence thus could not be taken without the express agreement of the Congo, that while a request for a written deposition from President Sassou Nguesso under Article 656 has been sent by the investigating judge to the French Ministry of Foreign Affairs, it has been retained by the Ministry, and that the current proceedings therefore have not caused and cannot cause any damage to the Congo by way of breach of the immunities of President Sassou Nguesso;

32. Whereas the Congo questions whether Article 656 is applicable to a foreign Head of State, and also observes that if that procedure were followed to obtain the evidence of a person who would otherwise qualify to be cited as a témoin assisté (as is the case of President Sassou Nguesso, since he was mentioned in the complaint referred to in paragraph 10 above), the protection afforded by other Articles of the Code of Criminal Procedure to a témoin assisté would be lacking, with a consequent prejudice to the rights of the defence; whereas the Congo also emphasizes the fact that where a

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réquisitoire is made by the Procureur de la République against an unidentified person, as was the case in the proceedings now complained of, the investigating judge is free to interrogate any person whom he considers likely to be able to furnish evidence, and that therefore the possibility cannot be excluded that the judge might take the initiative to include President Sassou Nguesso in his investigation, particularly as President Sassou Nguesso is mentioned in the documentation upon which the réquisitoire was based;

33. Whereas the Court notes in this respect the following statements by the Agent and the counsel of France: "In conformity with international law, French law embodies the principle of the immunity of foreign Heads of State ... There are no written rules deriving from any legislation relating to the immunities of States and their representatives. It is the jurisprudence of the French courts which, referring to customary international law and applying it directly, have asserted clearly and forcefully the principle of these immunities." "One thing must be clear at the outset: France in no way denies that President Sassou Nguesso enjoys, as a foreign Head of State, ‘immunities from jurisdiction, both civil and criminal’." "Until the present moment it has not been challenged, and it is certainly not seriously challengeable, that all the steps taken by the French courts in this particular case have been strictly in conformity with French law. They have respected the limits of their jurisdiction and have respected the immunities enshrined in French law in conformity with international law. Can it be supposed that in the future our courts would move away from respecting the law they are required to apply?" "We have simply stated what French law is; we have promised nothing, we have said that French law does not allow the prosecution of a foreign Head of State; that is not a promise, it is a statement of law. And also that French law subordinates the jurisdiction of the French courts over acts committed abroad to certain conditions. That too is not a promise, it is a statement of law. At the very

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most, but it would be somewhat pointless to do so, we might promise that the French courts will respect French law. But I think this might be taken for granted, and if some particular judicial decision, of which we have no example right now in our present case, were to exceed the limits set down by the law there would of course be means of recourse to remedy any errors which might have been made";

34. Whereas the Court is not now called upon to determine the compatibility with the rights claimed by the Congo of the procedure so far followed in France, but only the risk or otherwise of the French criminal proceedings causing irreparable prejudice to such claimed rights;

35. Whereas it appears to the Court, on the information before it, that as regards President Sassou Nguesso, there is at the present time no risk of irreparable prejudice, so as to justify the indication of provisional measures as a matter of urgency; and whereas neither is it established that any such risk exists as regards General Oba, Minister of the Interior of the Republic of the Congo, for whom the Congo also claims immunity in its Application;

[pp. 110-111] 36. Whereas the Court will now, as a second question, consider the existence of a risk of irreparable prejudice in relation to the claim of the Congo that the unilateral assumption by a State of universal jurisdiction in criminal matters constitutes a violation of a principle of international law; whereas in this respect the question before the Court is whether the proceedings before the Tribunal de grande instance of Meaux involve a threat of irreparable prejudice to the rights invoked by the Congo justifying, as a matter of urgency, the indication of provisional measures;

37. Whereas, as regards President Sassou Nguesso, the request for a written deposition made by the investigating judge on the basis of Article 656 of the French Code of Criminal Procedure has not been transmitted to the person concerned by the French Ministry of Foreign Affairs (see paragraph 31 above); whereas, as regards General Oba

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and General Adoua, they have not been the subject of any procedural measures by the investigating judge; whereas no measures of this nature are threatened against these three persons; whereas therefore there is no urgent need for provisional measures to preserve the rights of the Congo in that respect;

38. Whereas as regards General Dabira, it is acknowledged by France that the criminal proceedings instituted before the Tribunal de grande instance of Meaux have had an impact upon his own legal position, inasmuch as he possesses a residence in France, and was present in France and heard as a témoin assisté, and in particular because, having returned to the Congo, he declined to respond to a summons from the investigating judge, who thereupon issued a mandat d’amener against him; whereas however the practical effect of a provisional measure of the kind requested would be to enable General Dabira to enter France without fear of any legal consequences; whereas the Congo has not demonstrated the likelihood or even the possibility of any irreparable prejudice to the rights it claims resulting from the procedural measures taken in relation to General Dabira;

[pp. 113-115 S.O. Koroma and Vereshchetin] 4. In our view, the Court appears not to have given sufficient weight to the risk of "irreparable harm", which could occur in the Congo as a result of the continuation of the criminal proceedings. Instead the Court limited itself to ruling that "it appears to the Court, on the information before it, that as regards President Sassou Nguesso, there is at the present time no risk of irreparable prejudice, so as to justify the indication of provisional measures as a matter of urgency; and ... neither is it established that any such risk exists as regards General Oba, Minister of the Interior of the Republic of the Congo, for whom the Congo also claims immunity in its Application" (Order, para. 35). The Court further stated that "the irreparable prejudice claimed by the Congo ... would not be caused to [the rights claimed in the Application] as such", while at the same time acknowledging that "this prejudice might, in the circumstances of the case, be regarded as such as to affect irreparably the rights asserted in the Application". The Court also noted, among other things, that it had not been informed in what practical respect the initiation of the

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criminal proceedings had occasioned any deterioration internally in the Congo (Order, para. 29). On these bases, the Court declined to indicate provisional measures.

5. This conclusion, in our view, would suggest that the Court has not given sufficient consideration to the "circumstances" as that term is used in Article 41 of the Statute, which requires the Court to consider all aspects, including the consequences that might occur if the interim Order is not granted.

6. Admittedly, both the spirit and letter of Article 41 of the Statute call for concern for the preservation of the rights which may be adjudged in the merits phase of the proceedings to be, as a rule, the guiding factor in taking a decision on provisional measures. This does not, however, mean that the harm attributable to the violation of those rights may not have much wider negative consequences and repercussions for legal and political interests of the State concerned, far transcending its adverse effect on the claimed rights as such. In these circumstances, the indication of provisional measures may become necessary not so much in view of the imminence of irreparable harm to the claimed rights, but rather because of the risk of grave consequences of their violation. We believe that these considerations, to a large extent, lay at the root of the Court’s decisions in a number of cases where provisional measures were explicitly ordered with a view to preventing "aggravation", "extension" or "exacerbation" of harm already done to the claimed rights, even if the risk of immediate irreparable prejudice to the claimed rights was not always so obvious. Moreover, some recent cases in the Court’s jurisprudence point to the fact that sometimes it is not easy to separate the harm caused by the consequences of the violation of claimed rights from the harm to the rights as such. This can be seen in the Orders on provisional measures which the Court indicated in the Vienna Convention on Consular Relations (Paraguay v. United States of America), LaGrand (Germany v. United States of America) and Avena and Other Mexican Nationals (Mexico v. United States of America) cases, where the lives of individuals were at stake.

7. For all the above–stated reasons, we entertain some reservations in respect of the Court’s having, in the circumstances of the present case, drawn a distinction between the harm to the rights which might subsequently be adjudged to belong to the Congo and the harm consequent upon the violation of those rights (Order, para. 29). This is not to imply that the Court has

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erected an insurmountable barrier between these two categories of harm or damage for as the Court itself noted: "this prejudice [that is damage to the ‘honour and reputation of the highest authorities of the Congo, and to internal peace in the Congo, to the international standing of the Congo and to Franco–Congolese friendship’ (Order, para. 27)] might, in the circumstances of the case, be regarded such as to affect irreparably the rights asserted in the Application" (Order, para. 29).

8. Our contention is that when considering a request for interim measures of protection, the Court should consider all relevant aspects of the matter before it, including the extent of the possible harmful consequences of the violation of the claimed right.

[pp. 131-133 D.O. de Cara] In the international order the Head of State represents the State in all aspects of its international intercourse and this general authority, called the jus repraesentationis omnimodae, follows from international law as much as, or even more than, from national constitutional law. Sir Arthur Watts summarizes the position as follows : « It may be said generally that nowadays Heads of States through their office manifest the spirit and grandeur of their nation as a whole. » 161 True, the international order traditionally provides means for making good such an injury to the standing or honour of a State and a subsequent judgment by the Court would constitute adequate reparation for the damage caused to the Congo in its relations with other members of the international community. On the other hand, nothing could make good the loss of reputation and honour suffered by a Head of State in the eyes of his people, who remain sensitive to press reports and propaganda disseminated by opponents. It is important to keep in mind that the present case involves an African Head of State. Owing to the civil wars and tragic events having marked the continent in recent years, rumours and accusations directed at one or another leader are easily given some credence, even though like accusations would raise smile or be considered frivolous elsewhere. In Africa the Head of State occupies a very special position, for « the people have a stronger sense of ethnic solidarity than of national or State solidarity », as Raymond Aron observed : « lacking cohesion as a result of the multiplicity of tribes, African States are pre-

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national or sub-national, as it were, in that the State does not have before it a unified nation. » He added that this new type of State « is territorial and national : territorial in that the sovereign is entitled to do as he pleases within its boundaries ; national in that the sovereign sees himself not as the possessor of the land nor as the master of those occupying it but as the embodiment of a people »162. Accordingly, the Head of State identifies the group, he incarnates the national will, he performs a « rallying » function, he symbolizes the existence of the nation and any accusation against him or attempted harm to his person is perceived as an attack on the State he represents in the manifestation of a certain unanism, even though unanism is fleeting. This has led one author to conclude. « An African Head of State who has been a leader and the first witness to the national ideal, to its sovereignty, who in tomorrow’s Africa will assuredly be a soldier, has as his prime mission proving the existence of the State. » 163 Now, foreign criminal proceedings initiated under murky circumstances against political leaders who prevailed after years of civil war can contribute to destabilizing the Government. A court which lends itself, even unintentionally, to manipulation by public opinion in a foreign country interferes in the internal affairs of that State. The prejudice is irreparable, as it undermines the legitimacy and stability of the foreign governmental authority. The Court did not wish to take account of this situation. It draws an abstract, categorical distinction between the rights to be protected and the prejudice arising from the violation of those rights, taking the view that irreparable prejudice would not be caused to the rights as such claimed by the Congo but might be regarded as such as to affect irreparably the rights asserted in the Application. First, it appears to me that what is at issue is not the separateness or magnitude of the injury; the crux is whether a causal nexus between the injurious act and the damage can be established: the violation of the right or the act giving rise to responsibility must be the cause of prejudice. Once this nexus has been established, it suffices to find that there is prejudice or, for the indication of provisional measures, a risk of irreparable prejudice. Secondly, in the political order it is not possible to stop at a mechanical analysis isolating each injury or event

161 Sir Arthur Watts, The Legal Position in International Law of Heads of State, Heads of

Government and Foreign Ministers, Recueil des Cours de l’Académie de droit international de La Haye, 1944, Vol. 247, p. 32. 162 Paix et guerre entre les nations, 1962, pp. 394-396. 163 Bernard Asso, Le chef d’Etat africain, 1976, p. 346.

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with a view to connecting it with its efficient cause. In itself, the violation of the rights which the Congo seeks to protect creates prejudice, for example in the case of immunity ; it can, however, also create other irreparable prejudice which may be observed in the future. That prejudice is difficult if not impossible to prove before it is suffered but it may be infinitely more serious, as in the case of the destabilization of the country. A formalistic approach confining itself to consideration of the asserted rights for which protection is sought disregards the fact that the violation of one right can give rise to a series of injuries likely to affect other rights and, more generally, legal interests worthy of preservation. In this regard, there is nothing to prevent the Court, in assessing the « circumstances » calling for the indication of provisional measues, from taking account of the legitimate interests of a party. Further, the development of the law of civil liability, notably in France, shows the court’s desire that the right to compensation for an injury caused to « a right » should be extended to the prejudice impairing a « legitimate interest » of the victim. The desire to preserve the international stability of the country, under threat of being undermined as a result of the allegations of criminal conduct levelled at the country’s leaders, is a legitimate legal interest of the Congo. This attack on national indepedence is clearly irreparable and once the Government has been shaken, a subsequent decision by the Court upholding the Congo’s Application could come too late.

3.10.3. Provisional Measures and Jurisdiction

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002

[p. 241] 58. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established; whereas moreover, once the Court has established the existence of such a basis for jurisdiction, it should not however indicate measures for the protection of any disputed rights other than those which might ultimately form

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the basis of a judgment in the exercise of that jurisdiction (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, para. 35);

[p. 247] 79. Whereas at this stage in the proceedings the Congo has not shown that its attempts to enter into negotiations or undertake arbitration proceedings with Rwanda (see paragraph 51 above) concerned the application of Article 29 of the Convention on Discrimination against Women; whereas nor has the Congo specified which rights protected by that Convention have allegedly been violated by Rwanda and should be the object of provisional measures; whereas the preconditions on the seisin of the Court set by Article 29 of the Convention therefore do not appear prima facie to have been satisfied;

[pp. 248-249] 86. Whereas the Congo lastly seeks to found the jurisdiction of the Court on Article 14, paragraph 1, of the Montreal Convention, which reads as follows: "Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court"; and whereas at the close of its Application the Congo made the following submission inter alia: "by shooting down a Boeing 727 owned by Congo Airlines on 9 October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda ... violated ... the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation of 23 September 1971";

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87. Whereas both the Congo and Rwanda are parties to the Montreal Convention and have been since 6 July 1977 in the case of the Congo and 3 November 1987 in the case of Rwanda;

88. Whereas the Congo has not however asked the Court to indicate any provisional measure relating to the preservation of rights which it believes it holds under the Montreal Convention; whereas accordingly the Court is not required, at this stage in the proceedings, to rule, even on a prima facie basis, on its jurisdiction under that Convention nor on the conditions precedent to the Court’s jurisdiction contained therein;

[p. 256 Decl. Higgins] I do not agree with one of the limbs relied on by the Court in paragraph 79 of its Order. It is well established in international human rights case law that it is not necessary, for the purpose of establishing jurisdiction over the merits, for an applicant to identify which specific provisions of the treaty said to found jurisdiction are alleged to be breached. See, for example, the findings of the Human Rights Committee on Stephens v. Jamaica (United Nations, Official Records of the General Assembly, Fifty–First Session, Supplement No. 40 (A/51/40)); B.d.B. et al v. The Netherlands (ibid., Forty–Fourth Session, Supplement No. 40 (A/45/40)); and many other cases. A fortiori is there no reason for the International Court of Justice, in establishing whether it has prima facie jurisdiction for purposes of the indication of provisional measures, to suggest a more stringent test. It should rather be for the Court itself, in accordance with the usual practice, to see whether the claims made by the Congo and the facts alleged could prima facie constitute violations of any particular clause in the Convention on the Elimination of All Forms of Discrimination against Women, the instrument relied on by the Congo as providing the Court with jurisdiction over the merits.

[p. 260 Decl. Elaraby] 1. I have voted against the rejection of the request for the indication of provisional measures submitted by the Democratic Republic of the Congo, principally because, in accordance with its Statute and its present jurisprudence, the Court should, in principle grant a request for provisional measures once the requirements of urgency on the one hand and likelihood of irreparable damage to the rights of one or both parties to a dispute, on the other, have been established. I am of the opinion that the Court has, under Article 41 of the

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Statute, a wide–ranging power of discretion to indicate provisional measures. The jurisprudence of the Court has progressively, albeit gradually, advanced from its earlier strict insistence on established jurisdiction to acceptance of prima facie jurisdiction as the threshold for the exercise of the Court’s powers under Article 41 of the Statute. This progressive shift has not, in my view, been reflected in the Order.

2. I see Article 41 of the Statute as the point of departure. Article 41 (1) provides that: "[t]he 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", while Article 41 (2) stipulates that "notice of the measures suggested shall forthwith be given to the parties and to the Security Council" (emphasis added).

3. My reading of the two subparagraphs together convinces me that the Court is vested with a wide scope of discretion to decide on the circumstances warranting the indication of provisional measures. The reference to the Security Council underlines the prominence of the link between the Court and the Council in matters related to the maintenance of international peace and security. The Statute moreover does not attach additional conditions to the authority of the Court to grant provisional measures. In point of fact, the jurisdiction of the Court need not be established at this early stage of the proceedings.

[p. 273 S.O. Mavungu] 5. According to its established case law, the Court can only indicate provisional measures if it has prima facie jurisdiction and if so required by the circumstances of a given case : the degree of urgency, the protection of the rights of the parties, the need to contain or not to aggravate the dispute (see infra). In the present case, the Court did not indicate provisional measures because the provisions relied upon by the Applicant do not appear to furnish a prima facie basis for its jurisdiction.

6. Whilst approving the general tenor of the Order, I can only partially agree with its operative provisions. I believe that the Court could have established its prima facie jurisdiction on the basis of at least two compromissory clauses and indicated certain provisional measures proprio motu in the light of the deplorable human tragedy, the losses of human life and the terrible suffering in the east of the Democratic Republic of the Congo as a result of the fighting there (paragraph 54 of the Order).

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Case Concerning Avena and other Mexican Nationals (Mexico v. United States of America) Request for the Indication of Provisional Measures Order of 5 February 2003 [p. 87] 38. … 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;

39. Whereas Article I of the Optional Protocol, which Mexico invokes as the basis of jurisdiction of the Court in the present case, is worded as follows: "Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a Party to the present Protocol";

40. Whereas, according to the information communicated by the Secretary–General of the United Nations as depositary, Mexico and the United States have been parties to the Vienna Convention since 16 June 1965 and 24 November 1969 respectively, and to the Optional Protocol since 15 March 2002 and 24 November 1969 respectively, in each case without reservation;

41. Whereas Mexico has argued that the issues in dispute between itself and the United States concern Articles 5 and 36 of the Vienna Convention and fall within the compulsory jurisdiction of the Court under Article I of the Optional Protocol; and whereas it has accordingly concluded that the Court has the jurisdiction necessary to indicate the provisional measures requested; and whereas the United States has said that it "does not propose to make an issue now of whether the Court possesses prima facie jurisdiction, although this is without prejudice to its right to contest the Court’s jurisdiction at the appropriate stage later in the case";

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42. Whereas, in view of the foregoing, the Court accordingly considers that, prima facie, it has jurisdiction under Article I of the aforesaid Optional Protocol to hear the case;

[p. 90] 51. Whereas Mexico’s principal request is that the Court should order the United States "to take measures sufficient to ensure that no Mexican national be executed and that no date for the execution of a Mexican national be set"; whereas the jurisdiction of the Court is limited in the present case to the dispute between the Parties concerning the interpretation and application of the Vienna Convention with regard to the individuals which Mexico identified as being victims of a violation of the Convention; whereas, accordingly, the Court cannot rule on the rights of Mexican nationals who are not alleged to have been victims of a violation of that Convention;

Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Order of 17 June 2003

[pp. 106-107] 20. Whereas on a request for the indication of provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established;

21. Whereas in the present case the Applicant did not in its Application invoke any provisions relied on as affording a basis on which the jurisdiction of the Court might be established, but proposed to found the jurisdiction of the Court upon a consent thereto yet to be given by France, as contemplated by Article 38, paragraph 5, of the Rules of Court; whereas by a letter dated 8 April 2003 from the Minister for Foreign Affairs of France, France consented explicitly to the jurisdiction of the Court to entertain the Application on the basis of that text;

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LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001

[p. 498] 92. The Court will now consider Germany's third submission, in which it asks the Court to adjudge and declare: "that the United States, 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 on the matter, violated its international legal obligation to comply with the Order on Provisional Measures issued by the Court on 3 March 1999, and to refrain from any action which might interfere with the subject matter of a dispute while judicial proceedings are pending".

[pp. 501-508] 98. 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.

99. 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 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.

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100. The French text of Article 41 reads as follows: "1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire. 2. En attendant l'arrêt définitif, l'indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité." (Emphasis added.) In this text, the terms "indiquer" and "l'indication" may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words "doivent être prises" have an imperative character. For its part, the English version of Article 41 reads as follows: "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.) According to the United States, the use in the English version of "indicate" instead of "order", of "ought" instead of "must" or "shall", and of "suggested" instead of "ordered", is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as "indicate" and "ought" have a meaning equivalent to "order" and "must" or "shall".

101. 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. 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

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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". The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41.

102. 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.

103. 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 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

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Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199). 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 between 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)).

104. 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.

105. The initial preliminary draft of the Statute of the Permanent Court of International Justice, as prepared by the Committee of Jurists established by the Council of the League of Nations, made no mention of provisional measures. A provision to this effect was inserted only at a later stage in the draft prepared by the Committee, following a proposal from the Brazilian jurist Raul Fernandes. Basing himself on the Bryan Treaty of 13 October 1914 between the United States and Sweden, Raul Fernandes had submitted the following text:

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"Dans le cas où la cause du différend consiste en actes déterminés déjà effectués ou sur le point de l'être, la Cour pourra ordonner, dans le plus bref délai, à titre provisoire, des mesures conservatoires adéquates, en attendant le jugement définitif." (Comité consultatif de juristes, Procès–verbaux des séances due comité, 16 juin–24 juillet 1920 (avec annexes), La Haye, 1920, p. 609.) In its English translation this text read as follows: "In case the cause of the dispute should consist of certain acts already committed or about to be committed, the Court may, provisionally and with the least possible delay, order adequate protective measures to be taken, pending the final judgment of the Court." (Advisory Committee of Jurists, Procès–verbaux of the Proceedings of the Committee, 16 June–24 July 1920 (with Annexes), The Hague, 1920, p. 609.) The Drafting Committee prepared a new version of this text, to which two main amendments were made: on the one hand, the words "la Cour pourra ordonner" ("the Court may ... order") were replaced by "la Cour a le pouvoir d'indiquer" ("the Court shall have the power to suggest"), while, on the other, a second paragraph was added providing for notice to be given to the parties and to the Council of the "measures suggested" by the Court. The draft Article 2bis as submitted by the Drafting Committee thus read as follows: "Dans le cas où la cause du différend consiste en un acte effectué ou sur le point de l'être, la Cour a le pouvoir d'indiquer, si elle estime que les circonstances l'exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire. "En attendant son arrêt, cette suggestion de la Cour est immédiatement transmise aux parties et au Conseil." (Comité consultatif de juristes, Procès– verbaux des séances due comité, 16 juin–24 juillet 1920 (avec annexes), La Haye, 1920, p. 567–568.) The English version read: "If the dispute arises out of an act which has already taken place or which is imminent, the Court shall have the power to suggest, if it considers that circumstances so require, the provisional measures that should be taken to

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preserve the respective rights of either party. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Council." (Advisory Committee of Jurists, Procès– verbaux of the Proceedings of the Committee, 16 June–24 July 1920 (with Annexes), The Hague, 1920, pp. 567–568.) The Committee of Jurists eventually adopted a draft Article 39, which amended the former Article 2bis only in its French version: in the second paragraph, the words "cette suggestion" were replaced in French by the words "l'indication".

106. When the draft Article 39 was examined by the Sub–Committee of the Third Committee of the first Assembly of the League of Nations, a number of amendments were considered. Raul Fernandes suggested again to use the word "ordonner" in the French version. The Sub–Committee decided to stay with the word "indiquer", the Chairman of the Sub–Committee observing that the Court lacked the means to execute its decisions. The language of the first paragraph of the English version was then made to conform to the French text: thus the word "suggest" was replaced by "indicate", and "should" by "ought to". However, in the second paragraph of the English version, the phrase "measures suggested" remained unchanged. The provision thus amended in French and in English by the Sub–Committee was adopted as Article 41 of the Statute of the Permanent Court of International Justice. It passed as such into the Statute of the present Court without any discussion in 1945.

107. 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.

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108. The Court finally needs to consider whether Article 94 of the United Nations Charter precludes attributing binding effect to orders indicating provisional measures. That Article reads as follows: "1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment." The question arises as to the meaning to be attributed to the words "the decision of the International Court of Justice" in paragraph 1 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 1 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.

109. 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.

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110. 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 in character and created a legal obligation for the United States.

111. As regards the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999, the Court observes that the Order indicated two provisional measures, the first of which states that "[t]he 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". The second measure required the Government of the United States to "transmit this Order to the Governor of the State of Arizona". The information required on the measures taken in implementation of this Order was given to the Court by a letter of 8 March 1999 from the Legal Counsellor of the United States Embassy at The Hague. According to this letter, on 3 March 1999 the State Department had transmitted to the Governor of Arizona a copy of the Court's Order. "In view of the extremely late hour of the receipt of the Court's Order", the letter of 8 March went on to say, "no further steps were feasible". The United States authorities have thus limited themselves to the mere transmission of the text of the Order to the Governor of Arizona. This certainly met the requirement of the second of the two measures indicated. As to the first measure, the Court notes that it did not create an obligation of result, but that the United States was asked to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings". The Court agrees that due to the extremely late presentation of the request for provisional measures, there was certainly very little time for the United States authorities to act.

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112. 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. The same is true of the United States Solicitor General's categorical statement in his brief letter to the United States Supreme Court that "an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief" (see paragraph 33 above). This statement went substantially further than the amicus brief referred to in a mere footnote in his letter, which was filed on behalf of the United States in earlier proceedings before the United States Supreme Court in the case of Angel Francisco Breard (see Breard v. Greene, United States Supreme Court, 14 April 1998, International Legal Materials, Vol. 37 (1988), p. 824; Memorial of Germany, Ann. 34). In that amicus brief, the same Solicitor General had declared less than a year earlier that "there is substantial disagreement among jurists as to whether an ICJ order indicating provisional measures is binding ... The better reasoned position is that such an order is not binding."

113. It is also noteworthy that the Governor of Arizona, to whom the Court's Order had been transmitted, decided not to give effect to it, even though the Arizona Clemency Board had recommended a stay of execution for Walter LaGrand.

114. Finally, the United States Supreme Court rejected a separate application by Germany for a stay of execution, "[g]iven the tardiness of the pleas and the jurisdictional barriers they implicate". Yet it would have been open to the Supreme Court, as one of its members urged, to grant a preliminary stay, which would have given it "time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved ..." (Federal Republic of Germany et al. v. United States et al., United States Supreme Court, 3 March 1999).

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115. The review of the above steps taken by the authorities of the United States with regard to the Order of the International Court of Justice of 3 March 1999 indicates that the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court's Order. 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. Under these circumstances the Court concludes that the United States has not complied with the Order of 3 March 1999.

[pp. 539-540 D.O. Oda] 34. In my view, addressing the general question as to whether or not an order indicating provisional measures "is binding" or "has binding force" is an empty, unnecessary exercise. I wonder what the Court really wants to say in holding that an order indicating provisional measures is binding. Is the Court trying to raise the question of responsibility of the State which allegedly has not complied with the order? This question has not arisen in the past jurisprudence of this Court. It suffices that provisional measures "ought to be taken" or, in the French, "doivent être prises" (Statute, Art. 41). Whether an order indicating provisional measures has been complied with or not is decided by the Court in its judgment on the merits.

35. In paragraph 111 of the Judgment, the Court then considers the "the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999". After a circuitous analysis the Court concludes that "under these circumstances ... the United States has not complied with the Order of 3 March 1999" (Judgment, para. 115), simply because Walter LaGrand was executed. Even if I were to accept that the issuance of the Order indicating provisional measures of 3 March 1999 was a valid exercise of the Court's jurisdiction, I believe that that Order was complied with by the United States, which took all measures at its disposal in an attempt to respect the terms. At any rate, the stay of an execution, in this case of Walter LaGrand, could not be – and, in fact, was not – mandated by the Court in its Order indicating provisional measures. I reiterate: it is extraordinary that the Court, in its Order of 3 March 1999, determined not the rights and duties of a State but the rights of an individual. In any case, the

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question as to whether or not the Order of 3 March 1999 indicating provisional measures was complied with should never have been raised.

[p. 543 S.O. Koroma] 7. I also cannot concur entirely with the reasoning of the Court regarding its finding on Article 41 of the Statute. The real issue is whether the Order for Provisional Measures issued by the Court on 3 March 1999 was binding on the United States, and not the interpretation of Article 41 of the Statute which the Court decided to undertake. I do not think its jurisprudence on this matter was in doubt. Nor do I subscribe to the theory of the linguistic ambiguity of the said provision. In my view the meaning of the provision is clear and objective and there can be no fundamental misunderstanding as to its purpose and meaning. It is also part of the Statute of the Court. The object and purpose of an order for provisional measures is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision of the Court. It is for the Court to grant or reject a request for an order. It follows that, when an order is granted in accordance with the Statute, it is binding. Otherwise, there would be no purpose in making an order, or the purpose would be defeated. This is how I have understood the provision and this Judgment should be seen in that light and not as casting doubt, albeit unwittingly, on previous orders for provisional measures issued by this Court.

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002 [p. 265 S.O. Dugard] 2. For many years there has been a debate over the question whether an Order for provisional measures, made under Article 41 of the Statute of the International Court of Justice, is binding or not. In the LaGrand case, the Court gave its answer: such an Order is binding upon States (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, pp. 32–41, paras. 92–116). As a consequence of this decision, provisional measures will assume a greater importance than before and there will be a greater incentive on the part of States to request such measures. In these circumstances, the Court should be cautious in making Orders for provisional measures where there are serious doubts about the basis for jurisdiction and strict in its response to requests for provisional measures where the

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jurisdictional basis for the claim is manifestly unfounded. If it fails to adopt such an approach, the Court will be inundated with requests for provisional measures.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) Judgment of 10 October 2002

[p. 453] 321. 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, para. 109). 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.

322. In this case, the Court had already noted in the above Order that it was unable to form any "clear and precise" picture of the events taking place in Bakassi in February 1996 (I.C.J. Reports 2001, para. 38). The same is true in respect of events in the peninsula after the Order of 15 March 1996 was handed down. Cameroon has not established the facts which it bears the burden of proving, and its submissions on this point must accordingly be rejected.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 258-259] 263. The Court observes that its "orders on provisional measures under Article 41 [of the Statute] have binding effect" (LaGrand (Germany v. United States of

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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. The Court’s Order of 1 July 2000 on provisional measures created legal obligations which both Parties were required to comply with.

264. With regard to the question whether Uganda has complied with the obligations incumbent upon it as a result of the Order of 1 July 2000, the Court observes that the Order indicated three provisional measures, as referred to in the DRC’s fifth submission. The Court notes that the DRC put forward no specific evidence demonstrating that after July 2000 Uganda committed acts in violation of each of the three provisional measures indicated by the Court. The Court however observes that in the present Judgment it has found that Uganda is responsible for acts in violation of international human rights law and international humanitarian law carried out by its military forces in the territory of the DRC (see paragraph 220 above). The evidence shows that such violations were committed throughout the period when Ugandan troops were present in the DRC, including the period from 1 July 2000 until practically their final withdrawal on 2 June 2003 (see paragraphs 206-211 above). The Court thus concludes that Uganda did not comply with the Court’s Order on provisional measures of 1 July 2000.

265. The Court further notes that the provisional measures indicated in the Order of 1 July 2000 were addressed to both Parties. The Court’s finding in paragraph 264 is without prejudice to the question as to whether the DRC did not also fail to comply with the provisional measures indicated by the Court.

[p. 323 S.O. Kooijmans] 70. In paragraph 264 of the Judgment the Court notes "that the DRC put forward no specific evidence demonstrating that after July 2000 Uganda committed acts in violation of each of the three provisional measures indicated by the Court".

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71. This observation would have sufficed to dismiss the DRC’s submission, just as the Court did in respect of a similar submission in its Judgment in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening). There the Court stated that it was for Cameroon to show that Nigeria acted in violation of the provisional measures indicated in the Order of 15 March 1996 but that Cameroon had not established the facts which it bore the burden of proving (I.C.J. Reports 2002, p. 452, paras. 321-322). In this respect the Court relied on its earlier statement that 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, I.C.J. Reports 1984, p. 437, para. 101.)

[p. 324 S.O. Kooijmans] 76. … in view of the fact that the DRC has not provided any specific evidence of Uganda’s violation of the Order and taking into account the purpose of provisional measures being the protection of the legal interests of either party, I sincerely regret that the Court has decided to include in the dispositif of the Judgment the finding that one of them has violated the Order of 1 July 2000, in particular since the Court in no way excludes that such violation has also been committed by the other Party.

77. There is no need for the Court to decide on each and every submission presented by the Parties. In the present case, for example, the dispositif does not deal with the Congolese requests for cessation and for guarantees and assurances, which only have been considered in the reasoning. Paragraphs 264 and 265 of the Judgment were sufficient to make clear the Court’s position in respect of the DRC’s submission on provisional measures.

78. The Court’s decision to include a finding in the dispositif is in my view an illustration of the lack of balance I have referred to earlier. For these reasons − and not because I disagree with the finding itself − I felt constrained to vote against paragraph 7 of the dispositif.

3.10.5. Provisional Measures and Merits Case Concerning Avena and other Mexican Nationals

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[pp. 88-89] 45. Whereas, according to Mexico, the position of the United States amounts to maintaining that "the Vienna Convention entitles Mexico only to review and reconsideration, and that review and reconsideration equals only the ability to request clemency"; whereas "the standardless, secretive and unreviewable process that is called clemency cannot and does not satisfy this Court’s mandate [in the LaGrand case]";

46. Whereas there is thus a dispute between the Parties concerning the rights of Mexico and of its nationals regarding the remedies that must be provided in the event of a failure by the United States to comply with its obligations under Article 36, paragraph 1, of the Vienna Convention; whereas that dispute belongs to the merits and cannot be settled at this stage of the proceedings; whereas the Court must accordingly address the issue of whether it should indicate provisional measures to preserve any rights that may subsequently be adjudged on the merits to be those of the Applicant;

47. Whereas the United States argues, however, that it is incumbent upon the Court, pursuant to Article 41 of its Statute, to indicate provisional measures "not to preserve only rights claimed by the Applicant, but ‘to preserve the respective rights of either party’"; that, "[a]fter balancing the rights of both Parties, the scales tip decidedly against Mexico’s request in this case"; that the measures sought by Mexico to be implemented immediately amount to "a sweeping prohibition on capital punishment for Mexican nationals in the United States, regardless of United States law", which "would drastically interfere with United States sovereign rights and implicate important federalism interests"; that this would, moreover, transform the Court into a "general criminal court of appeal", which the Court has already indicated in the past is not its function; and that the measures requested by Mexico should accordingly be refused;

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48. 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 (I), 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"; 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;

3.11. Intervention 3.11.1. General Questions (Article 62 and 63 of the Statute)

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Application by the Philippines for Permission to Intervene Judgment of 23 October 2001 [p. 623-624 S.O. Koroma] 5. Furthermore, it should be observed that the scope of the Court’s decision is defined by the claims or submissions of the parties before it, and the decision of the Court constitutes an embodiment of its findings in response to the submissions made by parties in a particular case. In the case of an intervention, the would–be intervening State has to define its "interests of a legal nature" and the "object" of that legal nature has to be indicated in order for the Court to be in a position to judge whether the intervention is admissible. It is then for the Court to decide whether or not an application for permission to

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intervene discloses an interest of a legal nature which might be affected by a decision in the case. It therefore stands to reason that the procedure envisaged under Article 62 is intended to enable a State with a legal interest that may be affected by a decision of the Court to be allowed to intervene in a dispute before the Court, in order to preserve its interest. Here too, whether an application to intervene succeeds or not, the decision in that particular case cannot be considered res judicata for a State which was not a party to the dispute before the Court, and nor should the reasoning underlying the decision.

3.11.2. Article 62, Prerequisites in General

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Application by the Philippines for Permission to Intervene Judgment of 23 October 2001

[pp. 583-586] 19. Both Indonesia and Malaysia argue that the Philippine Application should not be granted because of its "untimely nature". …

20. The Court will consider this objection ratione temporis by applying the relevant requirements of its Rules dealing with the intervention procedure to the factual circumstances of the case. Article 81, paragraph 1, of the Rules of Court, referred to above (see paragraph 16), stipulates that: "[a]n Application for permission to intervene under the terms of Article 62 of the Statute, ... shall be filed as soon as possible, and not later than the closure of the written proceedings. In exceptional circumstances, an application submitted at a later stage may however be admitted." The Court recalls that the Special Agreement between Indonesia and Malaysia was registered with the United Nations on 29 July 1998 and notified to the Court on 2 November 1998. Pursuant to Article 40, paragraph 3, of the Statute of the Court and Article 42 of the Rules of Court, copies of the notification and of the Special

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Agreement were transmitted to all the Members of the United Nations and other States entitled to appear before the Court (see paragraph 2 above). Thus, the Philippines had been aware that the Court had been seised of the dispute between Indonesia and Malaysia for more than two years before it filed its Application to intervene in the proceedings–under Article 62 of the Statute. By the time of the filing of the Application, 13 March 2001, the Parties had already completed three rounds of written pleadings as provided for as mandatory in the Special Agreement – Memorials, Counter–Memorials and Replies – their time–limits being a matter of public knowledge. Moreover, the Agent for the Philippines stated during the hearings that his Government "was conscious of the fact that after 2 March 2001, Indonesia and Malaysia might no longer consider the need to submit a final round of pleadings as contemplated in their Special Agreement".

21. Given these circumstances, the time chosen for the filing of the Application by the Philippines can hardly be seen as meeting the requirement that it be filed "as soon as possible" as contemplated in Article 81, paragraph 1, of the Rules of Court. This requirement which, although when taken on its own might be regarded as not sufficiently specific, is nevertheless essential for an orderly and expeditious progress of the procedure before the Court. In view of the incidental character of intervention proceedings, it emphasizes the need to intervene before the principal proceedings have reached too advanced a stage. In one of the recent cases, dealing with another type of incidental proceeding the Court observed that: "the sound administration of justice requires that a request for the indication of provisional measures ... be submitted in good time" (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 14, para. 19). The same applies to an application for permission to intervene, and indeed even more so, given that an express provision to that effect is included in Article 81, paragraph 1, of the Rules of Court.

22. As to the argument of the Philippines that the delay in the filing of its Application for permission to intervene was caused by its wish first to secure access to the pleadings of the Parties, the Court does not find anything in its Rules or practice to

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support the view that there exists an inextricable link between the two procedures or, for that matter, that the requirement of the timeliness of the Application for permission to intervene may be made conditional on whether or not the State seeking to intervene is granted access to the pleadings. Furthermore, the Philippine argument is undermined by the fact that the Philippines asked the Court to furnish it with copies of the pleadings and other documents of the Parties only on 22 February 2001, that is less than ten days before the completion of the last compulsory round of written pleadings. It is not unusual in the practice of the Court that in reliance on Article 53, paragraph 1, of its Rules, States entitled to appear before the Court ask to be furnished with copies of the pleadings of the Parties at an early stage of the written proceedings (see, for example, case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 5, para. 4; case concerning Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 5, para. 4).

23. The Court notes, however, that despite the filing of the Application at a late stage in the proceedings, which does not accord with the stipulation of a general character contained in Article 81, paragraph 1, of the Rules requiring that "[a]n application for permission to intervene ... shall be filed as soon as possible", the Philippines cannot be held to be in violation of the requirement of the same Article, which establishes a specific deadline for an application for permission to intervene, namely "not later than the closure of the written proceedings". It will be recalled that the Special Agreement provided for the possibility of one more round of written pleadings – the exchange of Rejoinders – "if the Parties so agree or if the Court decides so ex officio or at the request of one of the Parties". It was only on 28 March 2001 that the Parties notified the Court by joint letter "that [their] Governments ... ha[d] agreed that it is not necessary to exchange Rejoinders". Thus, although the third round of written pleadings terminated on 2 March 2001, neither the Court nor third States could know on the date of the filing of the Philippine Application whether the written proceedings had indeed come to an end. In any case, the Court could not have "closed" them before it had been notified of the views of the

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Parties concerning a fourth round of pleadings contemplated by Article 3, paragraph 2 (d), of the Special Agreement. Even after 28 March 2001, in conformity with the same provision of the Special Agreement, the Court itself could ex officio "authoriz[e] or prescrib[e] the presentation of a Rejoinder", which the Court did not do.

25. For these reasons, the filing of the Philippine Application on 13 March 2001 cannot be viewed as made after the closure of the written proceedings and remained within the specific time–limit prescribed by Article 81, paragraph 1, of the Rules of Court. In somewhat similar circumstances, dealing with the Nicaraguan Application for permission to intervene in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), a Chamber of the Court found that, since the Special Agreement included a provision for a possible further exchange of pleadings, even when the Replies of the Parties had been filed, "the date of the closure of the written proceedings, within the meaning of Article 81, paragraph 1, of the Rules of Court, would remain still to be finally determined" (I.C.J. Reports 1990, p. 98, para. 12). The Court had pronounced itself in similar terms some ten years earlier in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 6, para. 5), although in the latter proceedings the question of timeliness was not in issue.

26. The Court therefore concludes that it cannot uphold the objection raised by Indonesia and Malaysia based on the alleged untimely filing of the Philippine Application.

[pp. 586-587] 27. Article 81, paragraph 3, of the Rules of Court provides that an application for permission to intervene "shall contain a list of documents in support, which documents shall be attached". In relation to this requirement, Indonesia argues in its written observations that "[i]n so far as it is claimed that the Philippines’ request is directed to safeguarding its historical and legal rights over the territory of North Borneo,

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such an alleged interest is unsupported by any documentary or other evidence contrary to the requirements of Article 81 (3) of the Rules of Court". For its part, Malaysia submitted no argument on this point.

28. The Philippines states that the fact that it has not annexed a list of documents in support of its Application does not concern the question of the admissibility of the Application, but rather that of evidence. It maintains that it was left with only two options: either "to try to document and argue [its] entire case for North Borneo, which would be impermissible and would be an affront to the Court, and would, [it] believe[s], properly be rejected by the Court" or "to decide not to attach documents, since [it] could not know which ones would be relevant to the pending case", with the risk that, in the latter case, one of the Parties would then complain about the failure to annex documents. 29. The Court confines itself to observing in this regard that, while Article 81, paragraph 3, of the Rules of Court indeed provides that the application shall contain a list of any documents in support, there is no requirement that the State seeking to intervene necessarily attach any documents to its application in support. It is only where such documents have in fact been attached to the said application that a list thereof must be included. A Chamber of the Court took care to emphasize, "it is for a State seeking to intervene to demonstrate convincingly what it asserts, and thus to bear the burden of proof" (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 117, para. 61). The Court considers, however, that the choice of the means whereby the State wishing to intervene seeks to prove its assertions lies in the latter’s sole discretion. In the Court’s view, paragraph 3 of Article 81 of its Rules has the same purpose, mutatis mutandis, as paragraph 3 of Article 50 of the said Rules, which provides that "[a] list of all documents annexed to a pleading shall be furnished at the time the pleading is filed". It follows that the Philippine Application for permission to intervene cannot be rejected on the basis of Article 81, paragraph 3, of the Rules of Court.

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[pp. 595-598] 46. ... the Court will at the outset consider whether a third State may intervene under Article 62 of the Statute in a dispute brought to the Court under a special agreement, when the State seeking to intervene has no interest in the subject– matter of that dispute as such, but rather asserts an interest of a legal nature in such findings and reasonings that the Court might make on certain specific treaties that the State seeking to intervene claims to be in issue in a different dispute between itself and one of the two Parties to the pending case before the Court.

47. The Court must first consider whether the terms of Article 62 of the Statute preclude, in any event, an "interest of a legal nature" of the State seeking to intervene in anything other than the operative decision of the Court in the existing case in which the intervention is sought. The English text of Article 62 refers in paragraph 1 to "an interest of a legal nature which may be affected by the decision in the case". The French text for its part refers to "un intérêt d’ordre juridique ... en cause" for the State seeking to intervene. The word "decision" in the English version of this provision could be read in a narrower or a broader sense. However, the French version clearly has a broader meaning. Given that a broader reading is the one which would be consistent with both language versions and bearing in mind that this Article of the Statute of the Court was originally drafted in French, the Court concludes that this is the interpretation to be given to this provision. Accordingly, the interest of a legal nature to be shown by a State seeking to intervene under Article 62 is not limited to the dispositif alone of a judgment. It may also relate to the reasons which constitute the necessary steps to the dispositif.

48. Having reached this conclusion, the Court must now consider the nature of the interest capable of justifying an intervention. In particular, it must consider whether the interest of the State seeking to intervene must be in the subject–matter of the existing case itself, or whether it may be different and, if so, within what limits.

49. In the majority of the applications for permission to intervene that have come before the Court, the applicant has claimed to have an interest in the very subject–

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matter of the dispute or the territory in which a delimitation is to be effected. Further, in the two cases where a request for intervention under Article 62 has been authorized by the Court, that authorization was in respect of an interest related to the subject– matter of the dispute (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 121, para. 72: Nicaragua’s rights in the Gulf of Fonseca necessarily being affected by the definition of a condominium; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, p. 1029: Equatorial Guinea’s maritime rights could be affected by the determination by the Court of the maritime boundary between Cameroon and Nigeria).

50. In 1981 Malta, seeking to intervene, invoked an interest of a legal nature which: "does not relate to any legal interest of its own directly in issue as between Tunisia and Libya in the present proceedings or as between itself and either one of those countries. It concerns rather the potential implications of reasons which the Court may give in its decision in the present case on matters in issue as between Tunisia and Libya ..." (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 19.)

51. The Court specified that Malta thought that any pronouncements on special circumstances or on equitable principles in that particular region would be certain, or very likely, to affect Malta’s own rights on the continental shelf: "what Malta fears is that in its decision in the present case the reasoning of the Court ... may afterwards have a prejudicial effect on Malta’s own legal interests in future settlement of its own continental shelf boundaries with Libya and Tunisia" (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 29).

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52. The Court did not, however, find this a pertinent factor in deciding whether or not to allow Malta to intervene. The Court noted that a State could not hope to intervene "simply on an interest in the Court’s pronouncements in the case regarding the applicable general principles and rules of international law" (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 30). But the interest in the Court’s findings and pronouncements was not in that case such a generalized interest. The Court thus turned to an examination of the interests that Malta had specified, notwithstanding that they did not lie in the very outcome of the case.

53. Malta’s Application was rejected, but not on the grounds that its expressed intention did not fall within the scope of the dispute as defined in the Special Agreement. Malta’s Application to intervene was not granted because the Court felt it was in effect being asked to prejudge the merits of Malta’s claim against Tunisia in a different dispute, which Malta had nonetheless not put before the Court.

54. The situation is different in the present case. Indeed, the Court considers that the request of the Philippines to intervene does not require the Court to prejudge the merits of any dispute that may exist between the Philippines and Malaysia, and which is not before the Court.

55. Whether a stated interest in the reasoning of the Court and any interpretations it might give is an interest of a legal nature for purposes of Article 62 of the Statute can only be examined by testing whether the legal claims which the State seeking to intervene has outlined might be thus affected. Whatever the nature of the claimed "interest of a legal nature" that a State seeking to intervene considers itself to have (and provided that it is not simply general in nature) the Court can only judge it "in concreto and in relation to all the circumstances of a particular case" (Chamber of the Court in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 61).

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[p. 598] 58. As the Chamber said in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), "it is for a State seeking to intervene to demonstrate convincingly what it asserts". Further, "[i]t is for the State seeking to intervene to identify the interest of a legal nature which it considers may be affected by the decision in the case, and to show in what way that interest may be affected" (I.C.J. Reports 1990, pp. 117–118, para. 61).

59. The Court would add that a State which, as in this case, relies on an interest of a legal nature other than in the subject–matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have.

60. In order to make concrete its submission that it has an interest of a legal nature which might be harmed by the reasoning of the Court in the forthcoming Judgment as to sovereignty over Pulau Ligitan and Pulau Sipadan, the Philippines may not introduce a new case before the Court nor make comprehensive pleadings thereon, but must explain with sufficient clarity its own claim of sovereignty in North Borneo and the legal instruments on which it is said to rest, and must show with adequate specificity how particular reasoning or interpretation of identified treaties by the Court might affect its claim of sovereignty in North Borneo.

[pp. 599-600] 63. The Court observes, however, that the Philippines must have full knowledge of the documentary sources relevant to its claim of sovereignty in North Borneo. While the Court acknowledges that the Philippines did not have access to the detailed arguments of the Parties as contained in their written pleadings, this did not prevent the Philippines from explaining its own claim, and from explaining in what respect any interpretation of particular instruments might affect that claim.

64. In outlining that claim, for purposes of showing an interest of a legal nature that might be affected by the reasoning or interpretation of the Court in the dispute over Pulau Ligitan and Pulau Sipadan, the Philippines has emphasized the importance of the

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instrument entitled, in English translation, "Grant by Sultan of Sulu of territories and lands on the mainland of the island of Borneo", dated 22 January 1878 (hereinafter the "Sulu–Overbeck grant of 1878").

65. This instrument which bears the official seal of the Sultan of Sulu is said by the Philippines to be its "primal source" of title in North Borneo. The Philippines interprets the instrument as a lease and not as a cession of sovereign title. It also acknowledges that the territorial scope of the instrument described in its first paragraph ("together with all the islands which lie within nine miles from the coast") did not include Pulau Ligitan and Pulau Sipadan.

66. The Court observes, however, that the Philippine claims of sovereignty, as shown on the map presented by the Philippines during the oral proceedings, do not coincide with the territorial limits of the grant by the Sultan of Sulu in 1878. Moreover, the grant of 1878 is not in issue as between Indonesia and Malaysia in the case, both agreeing that Pulau Ligitan and Pulau Sipadan were not included in its reach. Also, the question whether the 1878 grant is to be characterized as a lease or a cession does not form part of the claim to title of either Party to the islands in issue. Neither Indonesia nor Malaysia relies on the 1878 grant as a source of title, each basing its claimed title upon other instruments and events.

67. The burden which the Philippines carries under Article 62, to show the Court that an interest of a legal nature may be affected by any interpretation it might give or reasoning it might adduce as to its "primal source" of title, is thus not discharged.

[pp. 603-604] 81. The Philippines needs to show to the Court not only "a certain interest in ... legal considerations" (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1981, p. 19, para. 33) relevant to the dispute between Indonesia and Malaysia, but to specify an interest of a legal nature which may be affected by reasoning or interpretations of the Court. The Court has

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stated that a State seeking to intervene should be able to do this on the basis of its documentary evidence upon which it relies to explain its own claim.

82. ...

83. ... The wish of a State to forestall interpretations by the Court that might be inconsistent with responses it might wish to make, in another claim, to instruments that are not themselves sources of the title it claims, is simply too remote for purposes of Article 62.

[pp. 604-606] 84. In respect of the "the precise object of the intervention" (Art. 81, para. 2 (b), of the Rules of Court), the Philippines states that its Application has the following objects: "(a) First, to preserve and safeguard the historical and legal rights of the Government of the Republic of the Philippines arising from its claim to dominion and sovereignty over the territory of North Borneo, to the extent that these rights are affected, or may be affected, by a determination of the Court of the question of sovereignty over Pulau Ligitan and Pulau Sipadan. (b) Second, to intervene in the proceedings in order to inform the Honourable Court of the nature and extent of the historical and legal rights of the Republic of the Philippines which may be affected by the Court’s decision. (c) Third, to appreciate more fully the indispensable role of the Honourable Court in comprehensive conflict prevention and not merely for the resolution of legal disputes". The Philippines submitted during the oral proceedings "that the objects (a) and (b) in the Application make clear the objectives of the Philippines in applying to the Court for permission to intervene under Article 62, are consistent with the Court’s jurisprudence; and amply fulfil the requirements of the Statute".

...

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87. As regards the first of the three objects stated in the Application of the Philippines (see paragraph 84 above), the Court notes that similar formulations have been employed in other applications for permission to intervene, and have not been found by the Court to present a legal obstacle to intervention (Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, pp. 11–12, para. 17; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 108– 109, para. 38 and pp. 130–131, para. 90; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, Order, p. 1032, para. 4).

88. So far as the second listed object of the Philippines is concerned, the Court, in its Order of 21 October 1999 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, recently reaffirmed a statement of a Chamber that: "[s]o far as the object of [a State’s] intervention is ‘to inform the Court of the nature of the legal rights [of that State] which are in issue in the dispute’, it cannot be said that this object is not a proper one: it seems indeed to accord with the function of intervention" (I.C.J. Reports 1999, p. 1034, para. 14).

89. That the rights claimed by the Philippines lie in North Borneo rather than in Pulau Ligitan and Pulau Sipadan makes the second stated object of the Philippines no less a proper one.

90. As to the third object listed in its Application, very occasional mention was made of it during the oral pleadings. But the Philippines did not develop it nor did it contend that it could suffice alone as an "object" within the meaning of Article 81 of the Rules. The Court rejects the relevance under the Statute and Rules of the third listed object.

[p. 612 D.O. Oda] 8. ... Article 62 of the Court’s Statute should be interpreted liberally so as to entitle a State, even one not having a jurisdictional link with the parties, which shows "an

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interest of a legal nature which may be affected by the decision in the case" (emphasis added) to participate in the case as a non–party, not necessarily on the side of either the applicant State or the respondent State in the principal case. The institution of "non–party intervention" has developed greatly over the past 20 years and it is perhaps an exaggeration to say that the Court’s established jurisprudence limits intervention to participation as a party.

[p. 617 D.O. Oda] 11. Where participation as a non–party should be permitted, which is the case here, it is not for the intervening State - which in the present case learned of the subject– matter of the dispute only through the Special Agreement of 31 May 1997 by means of which the dispute was brought to the Court - to prove in advance that its interest will be affected by the decision in the case. Without participating in the merits phase of the case, the intervening State has no way of knowing the issues involved, particularly when it is refused access to the written pleadings. Rather, if a request for permission to intervene is to be rejected, the burden should be placed on the parties to the principal case to show that the interest of the third State will not be affected by the decision in the case.

[p. 625 Decl. Parra–Aranguren] Notwithstanding my vote for the operative part of the Judgment, I consider it necessary to state that, in my opinion, Article 62 of the Statute refers only to the dispositif part of the Judgment in the main case. The findings or reasoning supporting the future Judgment of the Court in the main case are not known at this stage of the proceedings. Therefore, it is impossible to take them into consideration, as the majority maintains (para. 47), in order to determine whether they may affect the legal interest of the State seeking for permission to intervene. Consequently, I cannot agree with other paragraphs of the Judgment which, after examining certain documents, conclude that the Philippines legal interest may not be affected by their interpretation.

[pp. 628-629 Decl. Kooijmans] 12. Fear is sometimes expressed that a liberal policy of granting permission to intervene might encourage States to attempt to intervene more often, which might lead to a situation at odds with the system of consensual jurisdiction; moreover, the risk of potential interventions might make States parties to a dispute less inclined to conclude a special agreement to submit that dispute to the Court.

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13. This line of reasoning is certainly not without ground; it seemingly, however, overlooks the fact that the discretion conferred upon the Court by Article 62, paragraph 2, of the Statute is not a "general discretion to accept or reject a request for permission to intervene for reasons simply of policy. On the contrary ... (the Court’s task) is to determine the admissibility or otherwise of the request by reference to the relevant provisions of the Statute." (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17.) Judicial policy alone therefore cannot allay the fears just mentioned.

14. The all–important criterion mentioned in Article 62, paragraph 1, of the Statute is the legal interest. In this respect the legal interest itself is as important as the risks to which it may be exposed by the Court’s decision if the intervention is not granted, and this is clear from the Court’s jurisprudence in previous cases. With all due respect, I have the impression that in this case the Court has concentrated too much on the second aspect.

15. In cases of requests for permission to intervene, the alleged legal interest will often not be a separate legal claim of the would–be intervener, whether that claim reflects an interest in the subject–matter of the main case or not. Parties to a dispute will, however, be extra–sensitive with regard to potential interveners which present as their legal interest a claim against one or both of them. In such cases, the Court should, for reasons of judicial policy, already give special attention to the plausibility of the claim and thereby to the specificity of the legal interest. In this respect, it is highly relevant that the Court has explicitly stated that a State which relies on an interest of a legal nature other than in the subject–matter of the case itself necessarily bears the burden of showing with a particular clarity the existence of the interest of a legal nature which it claims to have (paragraph 59 of the Judgment).

16. In the present case the Philippines has, in my opinion, failed to make its claim sufficiently plausible by not providing answers to highly pertinent questions which were put during the oral proceedings. I regret that the Court has not explicitly said so. A State which wishes to intervene should know that, in order to be allowed to do so, it must establish with fully convincing arguments the legal interest which may be affected by the Court’s decision.

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[pp. 654-655 S.O. Franck] 7. ... Under Article 62, paragraph 2, of the Statute of the Court, it is for the Court itself to decide whether the applicant–intervener possesses a "legal interest" in the main action to be decided by the Court (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17). That the applicant–intervener has the right and obligation to demonstrate such legal interest does not end the matter. It remains for the Court to satisfy itself that international law does not bar the very interest that the Philippines seeks to have protected.

8. In this regard, it does not matter whether the Parties themselves have fully argued the legality of the interest the Applicant seeks to protect. It is important to draw a distinction between (i) cases in which the Court proceeds to decide issues not raised in the parties’ submissions (which would likely be precluded by the non ultra petita rule), and (ii) those cases in which, precisely in order to deal correctly with an issue which has been referred to it, the Court must take into account considerations of fact or of law other than those relied upon by the parties (Fitzmaurice, The Law and Procedure of the International Court of Justice, 1986, p. 531). The present case falls into category (ii). It is essential – in determining whether the Philippines has a legal interest in protecting its claim of historic sovereignty over most of North Borneo – that the Court take into account all the relevant international law, including the modern law of decolonization and self–determination. The mere fact that this law was but passingly raised by the Parties does not preclude Members of the Court taking judicial notice of the impact of so vital a legal principle, one that profoundly bears on the Applicant’s claim to possess a "legal interest". As was stated by the Court in the Fisheries Jurisdiction case: "The Court ... as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court." (I.C.J. Reports 1974, p. 9, para. 17.) While this statement was made in the context of applying Article 53, the principle is equally applicable when giving effect to Article 62.

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3.11.3. Article 62, Jurisdictional Link

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia) Application by the Philippines for Permission to Intervene Judgment of 23 October 2001

[pp. 588-599] 35. As a Chamber of the Court has already had occasion to observe: "Intervention under Article 62 of the Statute is for the purpose of protecting a State’s ‘interest of a legal nature’ that might be affected by a decision in an existing case already established between other States, namely the parties to the case. It is not intended to enable a third State to tack on a new case ... An incidental proceeding cannot be one which transforms [a] case into a different case with different parties." (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, pp. 133–134, paras. 97–98.) Moreover, as that same Chamber pointed out, and as the Court itself has recalled: "It ... follows ... from the juridical nature and from the purposes of intervention that the existence of a valid link of jurisdiction between the would–be intervener and the parties is not a requirement for the success of the application. On the contrary, the procedure of intervention is to ensure that a State with possibly affected interests may be permitted to intervene even though there is no jurisdictional link and it therefore cannot become a party." (Ibid., p. 135, para. 100; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999, pp. 1034–1035, para. 15.) Thus, such a jurisdictional link between the intervening State and the Parties to the case is required only if the State seeking to intervene is desirous of "itself becoming a party

to

the

case"

(Land,

Island

and

Maritime

Frontier

Dispute

(El

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Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 135, para. 99).

36. That is not the situation here. The Philippines is seeking to intervene in the case as a non–party. Hence the absence of a jurisdictional link between the Philippines and the Parties to the main proceedings does not present a bar to the Philippine intervention.

[pp. 643-647 S.O. Weeramantry] (i) Tension between Article 62 of the Statute and the Consensual Principle ... 26. There are no words in Article 62 indicative of an intent to restrict the right to intervene only to States which have already submitted to the jurisdiction. One way of looking at the matter is to assume that when a party so seeks to intervene, it is implicitly submitting to the Court’s jurisdiction, thereby becoming subject to any orders the Court may make. Another approach is to consider Article 62 to be an exception to the usual jurisdictional rule. The framers of the Court’s Statute could well have laid down a jurisdictional link as a precondition to the right to intervene, but they chose not to do so. Consent could be viewed as necessary where the intervener seeks to become a party, but not otherwise.

(ii) Legislative History of Article 62 ... The retention of Article 62 despite the abandonment of the principle of compulsory jurisdiction is thus significant. Whether it was an oversight or deliberate, the fact remains that this statutory provision remained and as such it needs to be given all force and efficacy164. It cannot be neutralised by interpretation or indeed even by Rules which the Court may make in the exercise of its undoubted power to regulate its procedure.

(iii) Statutory Provisions to be Rendered EffectiveRrather than Negatived by Interpretation

164

See McDougal, Lasswell and Miller, The Interpretation of International Agreements and World Public Order: Principles of Content and Procedure.

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27. That important provision of the Statute must be given effect as far as is practicable. If the requirement of a jurisdictional link be postulated, that could in many cases render nugatory an express provision in the Statute of the Court. One must have regard to the general principle that statutory provisions are to be given effect as far as possible and not nullified by contrary interpretation. The separate opinions rendered in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Application for Permission to Intervene165 are of interest on this matter. While Judge Morozov was of the view that the intervener must show a jurisdictional basis for its claim, Judges Oda and Schwebel were both specific in their view that an intervening State does not need to show a jurisdictional link with the original litigant State. The inconclusive nature of the Court’s decision in relation to this problem concerning intervention was the subject of adverse comment, among others by Judge Philip C. Jessup166. The jurisdictional link was not a basis for the Court’s decision in that case. The present Judgment167 goes far towards settling this issue, consolidating the law on this matter along the lines indicated by the decisions in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) 168 and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) 169. I agree that a jurisdictional link is required only if the State seeking to intervene is desirous of "itself becoming a party to the case"170.

(iv) Article 81 (2) (c) of 1978 Rules

28. Article 81, paragraph 2, of the 1978 Rules of Court represents a fundamental departure from the 1972 Rules inasmuch as Article 81, paragraph 2 (c), requires the application to set out "any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case". There was no reference to this jurisdictional link in the 1972 Rules which only required a description of the case, a statement of law and fact justifying intervention and a list of the documents in support. 165

I.C.J. Reports 1981, pp. 22 ff.

166

In an Editorial Comment in the American Journal of International Law, 75 (1981) AJIL 903 at 908.

167

See paras. 35 and 36.

168

I.C.J. Reports 1990, p. 135.

169

I.C.J. Reports 1999 (II), pp. 1034–1035, para. 15.

170

Para. 35.

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This reference to a jurisdictional basis, it will be noted, does not specify it as a necessary factor for intervention. It is only mentioned as a circumstance which the applicant needs to set out, a circumstance which would no doubt be of assistance to the Court in making its overall decision. The use of the expression "any basis of jurisdiction" rather than "the basis of jurisdiction" is also significant. A Rule of the Court cannot nullify a provision of the Court’s Statute and must always be read in conformity with it. In the Continental Shelf case between Tunisia and Libya171 it was Malta’s argument that this provision went in fact beyond the authority given to the Court to regulate its procedure172. It argued that the Court’s rule–making power could not be employed to introduce a new substantive condition for the grant of permission to intervene.

(v) Conclusion

29. The legislative history of Article 62, the rules of interpretation, the need for enhancing the services rendered by the Court to the international community and the jurisprudence of the Court thus combine to point to the conclusion that a jurisdictional link is not a prerequisite to intervention.

*

3.11.4. Procedural Rights of the Intervening State

*

3.11.5. Article 63

3.12. Counter–Claim

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Counter–Claims Order of 29 November 2001

[p. 677] 31. Whereas the Congo asserts as its principal argument that "the claims put forward by Uganda in its Counter–Memorial are inadmissible as counter–claims" on

171

I.C.J. Reports 1981, p. 8, para. 12.

172

Cf. Wolfgang W. Fritzemeyer, Intervention in the International Court of Justice, 1983, p. 75.

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the ground that they "do not satisfy the formal conditions laid down by Article 80, paragraph 2, of the Rules of Court";

32. Whereas Article 80, paragraph 2, of the Rules of Court provides that "[a] counter– claim shall be made in the Counter–Memorial of the party presenting it, and shall appear as part of the submissions of that party"; whereas the counter–claims of Uganda were set out in various sections of Chapter XVIII of its Counter–Memorial entitled "The State Responsibility of the DRC and the Counter–Claims of the Republic of Uganda"; whereas those claims refer to acts by which the Congo is said to have violated a number of international obligations in regard to Uganda; and whereas Uganda, in the submissions in its Counter–Memorial, requests the Court "(1) To adjudge and declare in accordance with international law … (C) That the Counter–claims presented in Chapter XVIII of the present Counter–Memorial be upheld. (2) To reserve the issue of reparation in relation to the Counter–claims for a subsequent stage of the proceedings";

33. Whereas Uganda’s counter–claims could have been presented in a clearer manner; whereas, however, their presentation does not deviate from the requirements of Article 80, paragraph 2, of the Rules of Court to such an extent that they should be held inadmissible on that basis; whereas, moreover, it was permissible for Uganda to refer to a request for reparation without the modalities thereof being stated at this stage; and whereas the Congo’s principal submission must therefore be denied;

[p. 678] 34. Whereas the Congo contends in the alternative that "the claims concerning respectively the aggression alleged to have been committed by the Congolese State before May 1997, the alleged attacks on Ugandan diplomatic premises and personnel in Kinshasa and the alleged breaches of the Lusaka Agreements ... do not satisfy the condition of ‘direct connection’ laid down by Article 80, paragraph 1, of the Rules of Court",

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and that Uganda’s counter–claims in this respect are therefore inadmissible as such;

35. Whereas the Court has in its jurisprudence already had occasion to state in the following terms the reasons why the admissibility of a counter–claim as such is contingent on the condition of a "direct connection" set out in Article 80, paragraph 1, of the Rules of Court: "whereas the Respondent cannot use [the counter–claim procedure] ... 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" (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. 257, para. 31; 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);

36. Whereas the Rules of Court do not however define what is meant by "directly connected"; whereas it is for the Court to assess whether the counter–claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and whereas, as a general rule, whether there is the necessary direct connection between the claims must be assessed both in fact and in law;

[pp. 678-679] 38. Whereas, in respect of Uganda’s first counter–claim (acts of aggression allegedly committed by the Congo against Uganda), the Congo maintains that the counter–claim satisfies the requirement under Article 80 of a direct connection only for the period from May to August 1998; whereas, as already recalled above (see paragraph 36), as a general rule, the existence of a direct connection between the counter–claim and the principal claim must be assessed both in fact and in law; whereas, contrary to the Congo’s contention, the establishment of such a connection is not subject to the condition that "the counter–claimant’s arguments must both support the counter–claim and be pertinent for the purposes of rebutting the principal claim"; whereas it is evident from the Parties’ submissions that their respective claims relate to facts of the same nature, namely the use of force and support allegedly provided to

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armed groups; whereas, while Uganda’s counter–claim ranges over a longer period than that covered by the Congo’s principal claim, both claims nonetheless concern a conflict in existence between the two neighbouring States, in various forms and of variable intensity, since 1994; whereas they form part of the same factual complex; and whereas each Party seeks to establish the other’s responsibility based on the violation of the principle of the non–use of force incorporated in Article 2, paragraph 4, of the United Nations Charter and found in customary international law, and of the principle of non–intervention in matters within the domestic jurisdiction of States; whereas the Parties are thus pursuing the same legal aims;

39. Whereas the Court considers that the first counter–claim submitted by Uganda is thus directly connected, in regard to the entire period covered, with the subject–matter of the Congo’s claims;

[pp. 679-680] 40. Whereas, in respect of Uganda’s second counter–claim (attacks on Ugandan diplomatic premises and personnel in Kinshasa, and on Ugandan nationals, for which the Congo is alleged to be responsible), it is evident from the case file that the facts relied on by Uganda occurred in August 1998, immediately after its alleged invasion of Congolese territory; whereas each Party holds the other responsible for various acts of oppression allegedly accompanying an illegal use of force; whereas these are facts of the same nature, and whereas the Parties’ claims form part of the same factual complex mentioned in paragraph 38 above; and whereas each Party seeks to establish the responsibility of the other by invoking, in connection with the alleged illegal use of force, certain rules of conventional or customary international law relating to the protection of persons and property; whereas the Parties are thus pursuing the same legal aims;

41. Whereas the Court considers that the second counter–claim submitted by Uganda is therefore directly connected with the subject–matter of the Congo’s claims;

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42. Whereas, in respect of Uganda’s third counter–claim (alleged violations by the Congo of the Lusaka Agreement), it is to be observed from the Parties’ submissions that Uganda’s claim concerns quite specific facts; whereas that claim refers to the Congolese national dialogue, to the deployment of the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) and to the disarmament and demobilization of armed groups; whereas these questions, which relate to methods for solving the conflict in the region agreed at multilateral level in a ceasefire accord having received the "strong support" of the United Nations Security Council (resolutions 1291 (2000) and 1304 (2000)), concern facts of a different nature from those relied on in the Congo’s claims, which relate to acts for which Uganda was allegedly responsible during that conflict; whereas the Parties’ respective claims do not therefore form part of the same factual complex; and whereas the Congo seeks to establish Uganda’s responsibility based on the violation of the rules mentioned in paragraph 38 above, whilst Uganda seeks to establish the Congo’s responsibility based on the violation of specific provisions of the Lusaka Agreement; whereas the Parties are thus not pursuing the same legal aims;

43. Whereas the Court considers that the third counter–claim submitted by Uganda is therefore not directly connected with the subject–matter of the Congo’s claims;

[p. 680] 44. Whereas, at the conclusion of its Written Observations, the Congo submitted in the further alternative that: "it would not be appropriate, on the basis of considerations of expediency deriving from the requirements of the sound administration of justice, to join the Ugandan claims to the proceedings on the merits pursuant to Article 80, paragraph 3, of the Rules of Court"; and whereas the Court, having found that the first and second counter–claims submitted by Uganda are directly connected with the subject–matter of the Congo’s claims, takes the view that, on the contrary, the sound administration of justice and the interests of procedural economy call for the simultaneous consideration of those counter–claims and the principal claims;

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[pp. 684-685 Decl. Verhoeven] The connection which counter–claims are required to have with the principal claim in order for them to be admissible must, it seems to me, be considered in the light of their purpose. That purpose is not always entirely clear. Judged by reference to national practices, the importance of counter–claims would appear to be twofold: on the one hand, they enable the court to gain a more thorough and precise understanding of the dispute of which it is seised and, on the other hand, they avoid the risk of incompatible – or even downright contradictory – rulings. These are the sole circumstances in which recourse to a counter–claim can effectively enable additional proceedings to be dispensed with. That is a reasonable explanation. Should it be otherwise in the case of international courts? I see no reason why. That being the case, the criteria of connection emphasized to date by the Court for the purpose of declaring counter–claims admissible (facts of the same nature, same overall factual situation, same legal objectives) must be understood in light of the above– mentioned aims. However, it would seem to me to be wrong to apply those criteria in a purely "mechanical" manner, whilst losing sight of the reasons which essentially explain why the Court should entertain the respondent’s claim without obliging him to institute new proceedings. Too rigid an application could result in an excessive reduction in the number of claims that might effectively be submitted by way of counter–claim; it could also be to disregard the fact, underlined by the Court, that the principal claim and the counter–claim are independent of one other, which necessarily implies that they need have neither the same subject–matter nor the same legal basis; finally, it cannot be precluded that other criteria may be judged relevant, under other circumstances, for the purpose of ruling on the admissibility of a counter–claim. The important point is always that the Court should be in the "best" position to pass judgment, and that the credibility of its judgments should not be jeopardized by inconsistent rulings. That said, it is a specific feature of the International Court of Justice that its jurisdiction is currently purely voluntary. That jurisdiction exists only because and insofar as the parties have so desired it. It is therefore possible that the Court, absent agreement, may not be able to assume jurisdiction tomorrow in respect of a claim of which it is seised today by way of counter–claim. Are we accordingly to conclude that the Court should adopt a particularly "liberal" approach when ruling on the admissibility of a counter–claim and, in particular, on the requirement that the counter–claim be directly connected to the subject–matter of the principal claim? I seriously doubt it. It is true that the peaceful settlement of disputes could be enhanced by such

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an approach. However, the risk is that it would encourage States to avoid a Court which keeps too many "surprises" up its sleeve, rather than submit to its jurisdiction. Further, the internal logic of a system of voluntary jurisdiction undoubtedly requires – irrespective of any considerations of jurisdictional policy – particular rigour in evaluating the connection which the counter–claim must have with the principal claim if it is not to be ruled inadmissible.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003

[p. 210] 105. The Court considers that it is open to Iran at this stage of the proceedings to raise objections to the jurisdiction of the Court to entertain the counter–claim or to its admissibility, other than those addressed by the Order of 10 March 1998. 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 Iranian claims, and that, to the extent indicated in paragraph 102 above, the counter–claim fell within the jurisdiction of the Court. The Order of 10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility, not directly linked to Article 80 of the Rules. 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 of the proceedings" (I.C.J. Reports 1998, p. 205, para. 41).

[pp. 210-211] 106. Iran maintains first that the Court cannot entertain the counter– claim of the United States because it was presented without any prior negotiation, and thus does not relate to a dispute "not satisfactorily adjusted by diplomacy" as contemplated by Article XXI, paragraph 2, of the 1955 Treaty, which reads as follows: "Any dispute between the High Contracting Parties as to the interpretation or

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application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means."

107. The Court cannot uphold this objection of Iran. It is established that a dispute has arisen between Iran and the United States over the issues raised in the counter–claim. The Court has to take note that the dispute has not been satisfactorily adjusted by diplomacy. Whether the fact that diplomatic negotiations have not been pursued is to be regarded as attributable to the conduct of the one Party or the other, is irrelevant for present purposes, as is the question whether it is the Applicant or the Respondent that has asserted a fin de non–recevoir on this ground. 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.

[pp. 212-213] 112. In its fourth objection Iran maintains that "the Court has jurisdiction to rule only on counter–claims alleging a violation by Iran of freedom of commerce as protected under Article X (1), and not on counter–claims alleging a violation of freedom of navigation as protected by the same paragraph". Iran concludes that "since an alleged violation of ‘freedom of commerce’ as protected under Article X (1) constitutes the only possible basis for the Court’s jurisdiction in the present case, no alleged violation of freedom of navigation or of any other provision of the Treaty of Amity can be entertained by the Court in the context of the counter– claim".

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113. It seems, nevertheless, that Iran changed its position and recognized that the counter–claim could be founded on a violation of freedom of navigation. For example, it stated: "Article X, paragraph 1, refers to ‘freedom of commerce and navigation’. It appears that these are distinct freedoms, and in your Order of 1998 you referred to them in the plural ... Thus there could be navigation between the territories of the High Contracting Parties without any commerce between those territories, even if there could not be navigation without any boat!"

114. The Court, in its Order of 10 March 1998, stated that "Whereas the counter–claim presented by the United States alleges attacks on shipping, the laying of mines, and other military actions said to be ‘dangerous and detrimental to maritime commerce’; whereas such facts are capable of falling within the scope of Article X, paragraph 1, of the 1955 Treaty as interpreted by the Court; and whereas the Court has jurisdiction to entertain the United States counter–claim in so far as the facts alleged may have prejudiced the freedoms guaranteed by Article X, paragraph 1." (I.C.J. Reports 1998, p. 204, para. 36.)

115. Article X, paragraph 1, envisages both freedoms, freedom of commerce and freedom of navigation, as argued by the United States and accepted by Iran during the oral hearings. As regards the claim of Iran, it is true that the Court has found that only freedom of commerce is in issue (paragraph 80 above). However, the Court also concluded in 1998 that it had jurisdiction to entertain the United States Counter–Claim in so far as the facts alleged may have prejudiced the freedoms (in the plural) guaranteed by Article X, paragraph 1, of the 1955 Treaty (emphasis added), i.e., freedom of commerce and freedom of navigation. This objection of Iran thus cannot be upheld by the Court.

[pp. 213-214] 116. Iran presents one final argument against the admissibility of the United States counter–claim, which however it concedes relates only to part of the counter–claim. Iran contends that the United States has broadened the subject–matter of its claim beyond the submissions set out in its counter–claim by having, belatedly, added

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complaints relating to freedom of navigation to its complaints relating to freedom of commerce, and by having added new examples of breaches of freedom of maritime commerce in its Rejoinder in addition to the incidents already referred to in the Counter– Claim presented with the Counter–Memorial.

117. The issue raised by Iran is whether the United States is presenting a new claim. The Court is thus faced with identifying what is "a new claim" and what is merely "additional evidence relating to the original claim". 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). In other words: "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" (Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series A/B, No. 78, p. 173). 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.

118. 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

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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 1" (ibid.). Subsequently to its Counter–Memorial and Counter–Claim and to that Order of the Court, the United States provided detailed particulars of further incidents substantiating, in its contention, its original claims. In the view of the Court, the United States has not, by doing so, transformed the subject of the dispute originally submitted to the Court, nor has it modified the substance of its counter–claim, which remains the same, i.e., alleged attacks by Iran on shipping, laying of mines and other military actions said to be "dangerous and detrimental to maritime commerce", thus breaching Iran’s obligations to the United States under Article X, paragraph 1, of the 1995 Treaty. The Court therefore cannot uphold the objection of Iran.

[pp. 214-217] 119. Having disposed of all objections of Iran to its jurisdiction over the counter–claim, and to the admissibility thereof, the Court has now to consider the counter–claim on its merits. To succeed on its counter–claim, the United States must show that: (a) its freedom of commerce or freedom of navigation between the territories of the High Contracting Parties to the 1955 Treaty was impaired; and that (b) the acts which allegedly impaired one or both of those freedoms are attributable to Iran. The Court would recall that Article X, paragraph 1, of the 1955 Treaty does not protect, as between the Parties, freedom of commerce or freedom of navigation in general. As already noted above (paragraph 90), the provision of that paragraph contains an important territorial limitation. In order to enjoy the protection provided by that text, the commerce or the navigation is to be between the territories of the United States and Iran. The United States bears the burden of proof that the vessels which were attacked were engaged in commerce or navigation between the territories of the United States and Iran.

121. …

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121. None of the vessels described by the United States as being damaged by Iran’s alleged attacks was engaged in commerce or navigation "between the territories of the two High Contracting Parties". Therefore, the Court concludes that there has been no breach of Article X, paragraph 1, of the 1955 Treaty in any of the specific incidents involving these ships referred to in the United States pleadings.

[pp. 217-218] 122. The United States has also presented its claim in a generic sense. It has asserted that as a result of the cumulation of attacks on United States and other vessels, laying mines and otherwise engaging in military actions in the Persian Gulf, Iran made the Gulf unsafe, and thus breached its obligation with respect to freedom of commerce and freedom of navigation which the United States should have enjoyed under Article X, paragraph 1, of the 1955 Treaty.

123. The Court cannot disregard the factual context of the case, as described in paragraphs 23 and 44 above. While it is a matter of public record that as a result of the Iran–Iraq war navigation in the Persian Gulf involved much higher risks, that alone is not sufficient for the Court to decide that Article X, paragraph 1, of the 1955 Treaty was breached by Iran. It is for the United States to show that there was an actual impediment to commerce or navigation between the territories of the two High Contracting Parties. However, according to the material before the Court the commerce and navigation between Iran and the United States continued during the war until the issuance of the United States embargo on 29 October 1987, and subsequently at least to the extent permitted by the exceptions to the embargo. The United States has not demonstrated that the alleged acts of Iran actually infringed the freedom of commerce or of navigation between the territories of the United States and Iran. The Court considers that, in the circumstances of this case, a generic claim of breach of Article X, paragraph 1, of the 1955 Treaty cannot be made out independently of the specific incidents whereby, it is alleged, the actions of Iran made the Persian Gulf unsafe for commerce and navigation, and specifically for commerce and navigation between the territories of the parties. However, the examination in paragraph 120 above of those incidents shows that none of them individually involved any interference with the

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commerce and navigation protected by the 1955 Treaty; accordingly the generic claim of the United States cannot be upheld.

124. The Court has thus found that the counter–claim of the United States concerning breach by Iran of its obligations to the United States under Article X, paragraph 1, of the 1955 Treaty, whether based on the specific incidents listed, or as a generic claim, must be rejected; there is therefore no need for it to consider, under this head, the contested issues of attribution of those incidents to Iran. In view of the foregoing, the United States claim for reparation cannot be upheld.

[p. 352 S.O. Simma] 59. By laying mines without warning commercial ships, by not notifying neutral ships of the presence of mines, and by harassing commercial shipping of all nationalities in the Persian Gulf also in other ways, Iran created dangerous and more onerous conditions for commercial shipping also between the two Parties173. As I have emphasized at the outset, the state of war between Iran and Iraq did not provide Iran with a general justification for its hostile activities because these were, for the greatest part, in violation of the laws of war and neutrality. Therefore, Iran ought to have been found in violation of its obligations under the 1955 Treaty, and the generic counter–claim of the United States should have been upheld.

60. To emphasize once again: in order to reach this conclusion, we need not look at each of the specific incidents described by the United States independently, or prove that each of these incidents is attributable to Iran. In fact, doing so would be inappropriate in the context of a generic claim. As long as it is clear that, during the Tanker War, Iran and Iraq were both engaging in actions detrimental to neutral commercial shipping in the Gulf (including, of course, commercial shipping between Iran and the United States), the particular extent to which Iran was responsible for these actions need not be determined with precision. It is sufficient to establish that Iran, because of the Iran–Iraq war, was responsible for a significant portion of those actions, and that such actions impaired the freedom of commerce between the 173

CMUS, p. 160. While I believe that Iran’s actions were inconsistent with Article X of the 1955 Treaty, it is not my view that such actions reached the level of an “armed attack” against the United States in the meaning of Article 51 of the United Nations Charter. There is thus no

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United States and Iran guaranteed by the 1955 Treaty in ways not justifiable simply because of the existence of a state of war. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) Judgment of 19 December 2005

[pp. 209-210] 93. The Court issued on 29 November 2001 an Order regarding counterclaims contained in the Counter-Memorial of Uganda. The Court found certain of Uganda’s counter-claims to be admissible as such. However, it found Uganda’s third counter-claim, alleging violations by the DRC of the Lusaka Agreement, to be "not directly connected with the subject-matter of the Congo’s claims". Accordingly, the Court found this counter-claim not admissible under Article 80, paragraph 1, of the Rules of Court.

94. It does not follow, however, that the Lusaka Agreement is thereby excluded from all consideration by the Court. Its terms may certainly be examined in the context of responding to Uganda’s contention that, according to its provisions, consent was given by the DRC to the presence of Ugandan troops from the date of its conclusion (10 July 1999) until all the requirements contained therein should have been fulfilled.

[p. 261] 270. In its consideration of the counter-claims submitted by Uganda, the Court must first address the question whether the DRC is entitled to challenge at this stage of the proceedings the admissibility of the counter-claims.

271. The Court notes that in the Oil Platforms case it was called upon to resolve the same issue now raised by Uganda. 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 counter-claim had previously been found admissible under Article 80 of the Rules (Oil Platforms, Judgment, I.C.J. Reports 2003, p. 210, para. 105). Discussing its prior Order, the Court declared: inconsistency between what I conclude here and what I have said on Article XX of the 1955

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"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 subjectmatter of the [principal] claims ..." (Ibid.)

272. There is nothing in the facts of the present case that compels a different conclusion. On the contrary, the language of the Court’s Order of 29 November 2001 clearly calls for the same outcome as the Court reached in the Oil Platforms case. 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).

273. The enquiry under Article 80 as to admissibility is only in regard to the question whether a counter-claim is directly connected with the subject-matter of the principal claim; it is not an over-arching test of admissibility. Thus the Court, in its Order of 29 November 2001, intended only to settle the question of a "direct connection" within the meaning of Article 80. At that point in time it had before it only an objection to admissibility founded on the absence of such a connection.

[pp. 261-262] 274. With regard to Uganda’s contention that the preliminary objections of the DRC are inadmissible because they failed to conform to Article 79 of the Rules of Court, the Court would observe that Article 79 concerns the case of an "objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits". It is inapplicable to the case of an objection to counter-claims which Treaty (see the respective section of the present opinion).

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have been joined to the original proceedings. The Court notes that nonetheless, the DRC raised objections to the counter-claims in its Reply, i.e., the first pleading following the submission of Uganda’s Counter-Memorial containing its counterclaims.

275. In light of the findings above, the Court concludes that the DRC is still entitled, at this stage of the proceedings, to challenge the admissibility of Uganda’s counterclaims.

[pp. 274-275] 322. The Court will first turn to the DRC’s challenge to the admissibility of the second counter-claim on the grounds that, by formally invoking the Vienna Convention on Diplomatic Relations for the first time in its Rejoinder of 6 December 2002, Uganda has "[sought] improperly to enlarge the subject-matter of the dispute, contrary to the Statute and Rules of Court" and contrary to the Court’s Order of 29 November 2001.

323. The Court first recalls that the Vienna Convention on Diplomatic Relations continues to apply notwithstanding the state of armed conflict that existed between the Parties at the time of the alleged maltreatment. The Court recalls that, according to Article 44 of the Vienna Convention on Diplomatic Relations: "The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property."

324. Further, Article 45 of the Vienna Convention provides as follows: "If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:

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(a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives; (b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State; (c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State." 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).

325. In relation to the DRC’s claim that the Court’s Order of 29 November 2001 precludes the subsequent invocation of the Vienna Convention on Diplomatic Relations, the Court recalls the language of this Order: "each Party holds the other responsible for various acts of oppression allegedly accompanying an illegal use of force ... each Party seeks to establish the responsibility the other by invoking, in connection with the alleged illegal use of force, certain rules of conventional or customary international law relating to the protection of persons and property" (I.C.J. Reports 2001, p. 679, para. 40; emphasis added).

326. The Court finds this formulation sufficiently broad to encompass claims based on the Vienna Convention on Diplomatic Relations, taking note that the new claims are based on the same factual allegation, i.e. the alleged illegal use of force. The Court was entirely aware, when making its Order, that the alleged attacks were on Embassy premises. Later reference to specific additional legal elements, in the context of an alleged illegal use of force, does not alter the nature or subject-matter of the dispute. It was the use of force on Embassy premises that brought this counter-claim within the

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scope of Article 80 of the Rules, but that does not preclude examination of the special status of the Embassy. 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).

327. The Court therefore finds that Uganda’s second counter-claim is not rendered inadmissible in so far as Uganda has subsequently invoked Articles 22, 24, 29, and 30 of the Vienna Convention on Diplomatic Relations.

*

3.13. Joinder

3.14. Withdrawal of Suit

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium) Judgment of 15 December 2004

[p. 293] 31. A number of arguments have been advanced by different Respondents as possible legal grounds that would lead the Court to take this course. One argument advanced by some of the respondent States is that the position of Serbia and Montenegro is to be treated as one that in effect results in a discontinuance of the proceedings which it has instituted. 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 ...". However, Serbia and Montenegro has expressly denied that its Observations were a notice of discontinuance, and has emphasized that it did not state that it was "not going on with the proceedings", but rather that it was requesting the Court to decide on the issue of jurisdiction. It has emphasized that it wants the Court to continue the case and to decide upon its jurisdiction, even though the decision that it seeks may result in a conclusion that there is no jurisdiction.

*

3.15. Question of Costs

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of the violation of the rights set forth in the Convention", as the Court prescribed in the LaGrand Judgment (I.C.J. Reports 2001, p. 514, para. 125).

143. It may be true, as the United States argues, that in a number of cases "clemency in fact results in pardons of convictions as well as commutations of sentences". In that sense and to that extent, it might be argued that the facts demonstrated by the United States testify to a degree of effectiveness of the clemency procedures as a means of relieving defendants on death row from execution. The Court notes, however, that the clemency process, as currently practised within the United States criminal justice system, does not appear to meet the requirements described in paragraph 138 above and that it is therefore not sufficient in itself to serve as an appropriate means of "review and reconsideration" as envisaged by the Court in the LaGrand case. The Court considers nevertheless that appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention, as has occurred in the case of the three Mexican nationals referred to in paragraph 114 above.

5. ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE 5.1. General Questions

Legal Consequences of the Construction Of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004 [pp. 222- 223 S.O. Kooijmans] 12. I am of the view that the Court, in deciding whether it is appropriate to respond to a request for an advisory opinion, can involve itself with the political debate which has preceded the request only to the extent necessary to understand the question put. It is no exception that such debate is heated but, as the Court said in the case of the Legality of the Threat or Use of Nuclear Weapons "once the Assembly has asked, by adopting a resolution, for an advisory opinion on a legal question, the Court, in determining whether there are any compelling reasons for it to refuse to give such an opinion, will not have regard to the origins or to the

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political history of the request, or to the distribution of votes in respect of the adopted resolution" (I.C.J. Reports 1996 (I), p. 237, para. 16). The Court, however, does not function in a void. It is the principal judicial organ of the United Nations and has to carry out its function and responsibility within the wider political context. It cannot be expected to present a legal opinion on the request of a political organ without taking full account of the context in which the request was made.

13. Although the Court certainly has taken into account the arguments put forward by Israel and has dealt with them in a considerate manner, I am of the view that the present Opinion could have reflected in a more satisfactory way the interests at stake for all those living in the region. The rather oblique references to terrorist acts which can be found at several places in the Opinion, are in my view not sufficient for this purpose. An advisory opinion is brought to the attention of a political organ of the United Nations and is destined to have an effect on a political process. It should therefore throughout its reasoning and up till the operative part reflect the legitimate interests and responsibilities of all those involved and not merely refer to them in a concluding paragraph (para. 162).

5.2. Request for Advisory Opinion

Legal Consequences of the Construction Of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 148-150] 25. The Court has already indicated that the subject of the present request for an advisory opinion falls within the competence of the General Assembly under the Charter (see paragraphs 15–17 above). However, Article 12, paragraph 1, of the Charter provides that: "While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests." A request for an advisory opinion is not in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation". It has however been argued in this case that the adoption by the General Assembly of resolution ES–10/14 was ultra vires

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as not in accordance with Article 12. The Court thus considers that it is appropriate for it to examine the significance of that Article, having regard to the relevant texts and the practice of the United Nations.

26. Under Article 24 of the Charter the Security Council has "primary responsibility for the maintenance of international peace and security". In that regard it can impose on States "an explicit obligation of compliance if for example it issues an order or command ... under Chapter VII" and can, to that end, "require enforcement by coercive action" (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, I.C.J. Reports 1962, p. 163). However, 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 (Certain Expenses of the United Nations, ibid., p. 163). "[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.)

27. As regards the practice of the United Nations, both the General Assembly and the Security Council initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace and security while the matter remained on the Council’s agenda. Thus the Assembly during its fourth session refused to recommend certain measures on the question of Indonesia, on the ground, inter alia, that the Council remained seised of the matter (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, para. 118). As for the Council, on a number of occasions it deleted items from its agenda in order to enable the Assembly to deliberate on them (for example, in respect of the Spanish question (Official Records of the Security Council, First Year: Second Series, No. 21,

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79th Meeting, 4 November 1946, p. 498), in connection with incidents on the Greek border (Official Records of the Security Council, Second Year, No. 89, 202nd Meeting, 15 September 1947, pp. 2404–2405) and in regard to the Island of Taiwan (Formosa) (Official Records of the Security Council, Fifth Year, No. 48, 506th Meeting, 29 September 1950, p. 5)). In the case of the Republic of Korea, the Council decided on 31 January 1951 to remove the relevant item from the list of matters of which it was seised in order to enable the Assembly to deliberate on the matter (Official Records of the Security Council, Sixth Year, S/PV.531, 531st Meeting, 31 January 1951, pp. 11– 12, para. 57). However, this interpretation of Article 12 has evolved subsequently. Thus the General Assembly deemed itself entitled in 1961 to adopt recommendations in the matter of the Congo (resolutions 1955 (XV) and 1600 (XVI)) and in 1963 in respect of the Portuguese colonies (resolution 1913 (XVIII)) while those cases still appeared on the Council’s agenda, without the Council having adopted any recent resolution concerning them. In response to a question posed by Peru during the Twenty–third session of the General Assembly, the Legal Counsel of the United Nations confirmed that the Assembly interpreted the words "is exercising the functions" in Article 12 of the Charter as meaning "is exercising the functions at this moment" (Twenty–third General Assembly, Third Committee, 1637th meeting, A/C.3/SR.1637, para. 9). 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.

28. The Court considers that the accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph 1, of the Charter.

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The Court is accordingly of the view that the General Assembly, in adopting resolution ES–10/14, seeking an advisory opinion from the Court, did not contravene the provisions of Article 12, paragraph 1, of the Charter. The Court concludes that by submitting that request the General Assembly did not exceed its competence.

[pp. 150-151] 29. It has however been contended before the Court that the present

request for an advisory opinion did not fulfil the essential conditions set by resolution 377 A (V), under which the Tenth Emergency Special Session was convened and has continued to act. In this regard, it has been said, first, that "The Security Council was never seised of a draft resolution proposing that the Council itself should request an advisory opinion from the Court on the matters now in contention", and, that specific issue having thus never been brought before the Council, the General Assembly could not rely on any inaction by the Council to make such a request. Secondly, it has been claimed that, in adopting resolution 1515 (2003), which endorsed the "Roadmap", before the adoption by the General Assembly of resolution ES–10/14, the Security Council continued to exercise its responsibility for the maintenance of international peace and security and that, as a result, the General Assembly was not entitled to act in its place. The validity of the procedure followed by the Tenth Emergency Special Session, especially the Session’s "rolling character" and the fact that its meeting was convened to deliberate on the request for the advisory opinion at the same time as the General Assembly was meeting in regular session, has also been questioned.

30. The Court would recall that resolution 377 A (V) states that: "if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures ..." The procedure provided for by that resolution is premised on two conditions, namely that the Council has failed to exercise its primary responsibility for the maintenance of

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international peace and security as a result of a negative vote of one or more permanent members, and that the situation is one in which there appears to be a threat to the peace, breach of the peace, or act of aggression. The Court must accordingly ascertain whether these conditions were fulfilled as regards the convening of the Tenth Emergency Special Session of the General Assembly, in particular at the time when the Assembly decided to request an advisory opinion from the Court.

31. In the light of the sequence of events described in paragraphs 18 to 23 above, the Court observes that, at the time when the Tenth Emergency Special Session was convened in 1997, the Council had been unable to take a decision on the case of certain Israeli settlements in the Occupied Palestinian Territory, due to negative votes of a permanent member; and that, as indicated in resolution ES–10/2 (see paragraph 19 above), there existed a threat to international peace and security. The Court further notes that, on 20 October 2003, the Tenth Emergency Special Session of the General Assembly was reconvened on the same basis as in 1997 (see the statements by the representatives of Palestine and Israel, A/ES–10/PV.21, pp. 2 and 5), after the rejection by the Security Council, on 14 October 2003, again as a result of the negative vote of a permanent member, of a draft resolution concerning the construction by Israel of the wall in the Occupied Palestinian Territory. The Court considers that the Security Council again failed to act as contemplated in resolution 377 A (V). It does not appear to the Court that the situation in this regard changed between 20 October 2003 and 8 December 2003, since the Council neither discussed the construction of the wall nor adopted any resolution in that connection. Thus, the Court is of the view that, up to 8 December 2003, the Council had not reconsidered the negative vote of 14 October 2003. It follows that, during that period, the Tenth Emergency Special Session was duly reconvened and could properly be seised, under resolution 377 A (V), of the matter now before the Court.

32. The Court would also emphasize that, in the course of this Emergency Special Session, the General Assembly could adopt any resolution falling within the subject– matter for which the Session had been convened, and otherwise within its powers,

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including a resolution seeking the Court’s opinion. It is irrelevant in that regard that no proposal had been made to the Security Council to request such an opinion.

5.3. Jurisdictional Questions and Denial of the Request for Advisory Opinion Legal Consequences of the Construction Of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 144-145] 14. The Court will thus first address the question whether it possesses jurisdiction to give the advisory opinion requested by the General Assembly on 8 December 2003. The competence of the Court in this regard is based on Article 65, paragraph 1, of its Statute, according to which the Court "may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request". The Court has already had occasion to indicate that: "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.)

15. 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 1, 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."

16. 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

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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 233, paras. 11 and 12).

17. The Court will so proceed in the present case. The Court would observe that Article 10 of the Charter has conferred upon the General Assembly a competence relating to "any questions or any matters" within the scope of the Charter, and that Article 11, paragraph 2, has specifically provided it with competence on "questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations ..." and to make recommendations under certain conditions fixed by those Articles.

[pp. 153-155] 37. As regards the alleged lack of clarity of the terms of the General Assembly’s request and its effect on the "legal nature" of the question referred to the Court, the Court observes that this question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law, including the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter the "Fourth Geneva Convention") and relevant Security Council and General Assembly resolutions. 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 raise[s] 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).

38. 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

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interpretation, and such necessary clarifications of interpretation have frequently been given by the Court. In the past, both the Permanent Court and the present Court have observed in some cases that the wording of a request for an advisory opinion did not accurately state the question on which the Court’s opinion was being sought (Interpretation of the Greco– Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16 (I), pp. 14–16), or did not correspond to the "true legal question" under consideration (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp. 87–89, paras. 34–36). 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). Consequently, the Court has often been required to broaden, interpret and even reformulate the questions put (see the three Opinions cited above; see also Jaworzina, Advisory Opinion, 1923, P.C.I.J., Series B, No. 8; Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 25; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 157–162). 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).

39. In the present instance, if the General Assembly requests the Court to state the "legal consequences" arising from the construction of the wall, the use of these terms necessarily encompasses an assessment of whether that construction is or is not in breach of certain rules and principles of international law. Thus, the Court is first called upon to determine whether such rules and principles have been and are still being breached by the construction of the wall along the planned route.

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40. 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 (I), 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.

[pp. 155-156] 41. Furthermore, the Court cannot accept the view, which has also been advanced in the present proceedings, that it has no jurisdiction because of the "political" character of the question posed. As is clear from its long–standing jurisprudence on this point, 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

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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 the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155)." (Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996 (I), p. 234, para. 13.) 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). Moreover, the Court has affirmed in its Opinion on the Legality of the Threat or Use of Nuclear Weapons that "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). The Court is of the view that there is no element in the present proceedings which could lead it to conclude otherwise.

[pp. 156-157] 44. 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 jurisdiction are met (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 234, para. 14). 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"

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(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 of Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), pp. 78–79, para. 29.) 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), Advisory 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.) 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). 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).

45. These considerations do not release the Court from the duty to satisfy itself, each time it is seised of a request for an opinion, as to the propriety of the exercise of its judicial function, by reference to the criterion of "compelling reasons" as cited above.

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The Court will accordingly examine in detail and in the light of its jurisprudence each of the arguments presented to it in this regard.

[pp. 157-159] 46. The first such argument is to the effect that the Court should not exercise its jurisdiction in the present case because the request concerns a contentious matter between Israel and Palestine, in respect of which Israel has not consented to the exercise of that jurisdiction. According to this view, the subject–matter of the question posed by the General Assembly "is an integral part of the wider Israeli–Palestinian dispute concerning questions of terrorism, security, borders, settlements, Jerusalem and other related matters". Israel has emphasized that it has never consented to the settlement of this wider dispute by the Court or by any other means of compulsory adjudication; on the contrary, it contends that the parties repeatedly agreed that these issues are to be settled by negotiation, with the possibility of an agreement that recourse could be had to arbitration. It is accordingly contended that the Court should decline to give the present Opinion, on the basis inter alia of the precedent of the decision of the Permanent Court of International Justice on the Status of Eastern Carelia.

47. 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 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

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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.) It followed from this that, in those proceedings, the Court did not refuse to respond to the request for an advisory opinion on the ground that, in the particular circumstances, it lacked jurisdiction. The Court did however examine the opposition of certain interested States to the request by the General Assembly in the context of issues of judicial propriety. 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.) In applying that principle to the request concerning Western Sahara, the Court found that a legal controversy did indeed exist, but one which had arisen during the proceedings of the General Assembly and in relation to matters with which the Assembly was dealing. It had not arisen independently in bilateral relations (ibid., p. 25, para. 34).

48. As regards the request for an advisory opinion now before it, the Court acknowledges that Israel and Palestine have expressed radically divergent views on the legal consequences of Israel’s construction of the wall, on which the Court has been asked to pronounce. 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

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West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34).

49. Furthermore, the Court does not consider that the subject–matter of the General Assembly’s request can be regarded as only a bilateral matter between Israel and Palestine. Given the powers and responsibilities of the United Nations in questions relating to international peace and security, it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations. The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine (see paragraphs 70 and 71 below). This responsibility has been described by the General Assembly as "a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy" (General Assembly resolution 57/107 of 3 December 2002). Within the institutional framework of the Organization, this responsibility has been manifested by the adoption of many Security Council and General Assembly resolutions, and by the creation of several subsidiary bodies specifically established to assist in the realization of the inalienable rights of the Palestinian people.

50. 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.

[pp. 159-160] 51. The Court now turns to another argument raised in the present proceedings in support of the view that it should decline to exercise its jurisdiction. Some participants have argued that an advisory opinion from the Court on the legality

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of the wall and the legal consequences of its construction could impede a political, negotiated solution to the Israeli–Palestinian conflict. More particularly, it has been contended that such an opinion could undermine the scheme of the "Roadmap" (see paragraph 22 above), which requires Israel and Palestine to comply with certain obligations in various phases referred to therein. The requested opinion, it has been alleged, could complicate the negotiations envisaged in the "Roadmap", and the Court should therefore exercise its discretion and decline to reply to the question put. This is a submission of a kind which the Court has already had to consider several times in the past. For instance, in its Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court stated: "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.)

52. One participant in the present proceedings has indicated that the Court, if it were to give a response to the request, should in any event do so keeping in mind "two key aspects of the peace process: the fundamental principle that permanent status issues must be resolved through negotiations; and the need during the interim period for the parties to fulfill their security responsibilities so that the peace process can succeed".

53. The Court is conscious that the "Roadmap", which was endorsed by the Security Council in resolution 1515 (2003) (see paragraph 22 above), constitutes a negotiating framework for the resolution of the Israeli–Palestinian conflict. It is not clear, however,

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what influence the Court’s opinion might have on those negotiations: participants in the present proceedings have expressed differing views in this regard. The Court cannot regard this factor as a compelling reason to decline to exercise its jurisdiction.

[p. 160] 54. It was also put to the Court by certain participants that the question of the construction of the wall was only one aspect of the Israeli–Palestinian conflict, which could not be properly addressed in the present proceedings. The Court does not however consider this a reason for it to decline to reply to the question asked. The Court is indeed aware that the question of the wall is part of a greater whole, and it would take this circumstance carefully into account in any opinion it might give. At the same time, the question that the General Assembly has chosen to ask of the Court is confined to the legal consequences of the construction of the wall, and the Court would only examine other issues to the extent that they might be necessary to its consideration of the question put to it.

[pp. 161-162] 56. 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. In its Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (I.C.J. Reports 1950, p. 72) and again in its Opinion on the Western Sahara, the Court made it clear that what is decisive in these circumstances is "whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character" (Western Sahara, I.C.J. Reports 1975, pp. 28–29, para. 46). Thus, for instance, in the proceedings concerning the Status of Eastern Carelia, the Permanent Court of International Justice decided to decline to give an Opinion inter alia because the question put "raised a question of fact which could not be elucidated without hearing both parties" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 72; see Status of Eastern Carelia, P.C.I.J., Series B, No. 5, p. 28). On the other hand, in the Western Sahara Opinion, the Court observed

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that it had been provided with very extensive documentary evidence of the relevant facts (I.C.J. Reports 1975, p. 29, para. 47).

57. In the present instance, the Court has at its disposal the report of the Secretary– General, as well as a voluminous dossier submitted by him to the Court, comprising not only detailed information on the route of the wall but also on its humanitarian and socio–economic impact on the Palestinian population. The dossier includes several reports based on on–site visits by special rapporteurs and competent organs of the United Nations. The Secretary–General has further submitted to the Court a written statement updating his report, which supplemented the information contained therein. Moreover, numerous other participants have submitted to the Court written statements which contain information relevant to a response to the question put by the General Assembly. The Court notes in particular that Israel’s Written Statement, although limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes; many other documents issued by the Israeli Government on those matters are in the public domain.

58. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. 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. There is therefore in the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion.

[pp. 162-163] 59. In their written statements, some participants have also put forward the argument that the Court should decline to give the requested opinion on the legal consequences of the construction of the wall because such opinion would lack any useful purpose. They have argued that the advisory opinions of the Court are to be seen as a means to enable an organ or agency in need of legal clarification for its future action to obtain that clarification. In the present instance, the argument continues, the

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General Assembly would not need an opinion of the Court because it has already declared the construction of the wall to be illegal and has already determined the legal consequences by demanding that Israel stop and reverse its construction, and further, because the General Assembly has never made it clear how it intended to use the opinion.

60. 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.) Likewise, in its Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), the Court noted: "The request is put forward by a United Nations organ with reference to its own decisions and it seeks legal advice from the Court on the consequences and implications of these decisions." (I.C.J. Reports 1971, p. 24, para. 32.) 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).

61. 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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62. 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.

[pp. 163-164] 63. Lastly, the Court will turn to another argument advanced with regard to the propriety of its giving an advisory opinion in the present proceedings. Israel has contended that Palestine, given its responsibility for acts of violence against Israel and its population which the wall is aimed at addressing, cannot seek from the Court a remedy for a situation resulting from its own wrongdoing. In this context, Israel has invoked the maxim nullus commodum capere potest de sua injuria propria, which it considers to be as relevant in advisory proceedings as it is in contentious cases. Therefore, Israel concludes, good faith and the principle of "clean hands" provide a compelling reason that should lead the Court to refuse the General Assembly’s request.

64. The Court does not consider this argument to be pertinent. As was emphasized earlier, it was the General Assembly which requested the advisory opinion, and the opinion is to be given to the General Assembly, and not to a specific State or entity.

[pp. 207-208 S.O. Higgins] 2. The question of discretion and propriety is very much harder. Although ultimately I have voted in favour of the decision to give the Opinion, I do think matters are not as straightforward as the Court suggests. It is apparent (not least from the wording of the request to the Court) that an attempt has been made by those seeking the Opinion to assimilate the Opinion on the wall to that obtained from the Court regarding Namibia (Legal Consequences for States of the Continued Presence of South Africa in

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Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 12). I believe this to be incorrect for several reasons. First and foremost, there was already, at the time of the request for an opinion in 1971 on the legal consequences of certain acts, a series of Court Opinions on South West Africa which made clear what were South Africa’s legal obligations (International Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, Advisory Opinion, I.C.J. Reports 1955, p. 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion, I.C.J. Reports 1956, p. 23). Further, all the legal obligations as mandatory Power lay with South West Africa. There were no legal obligations, still less unfulfilled obligations, which in 1971 lay also upon South–West Africa People’s Organisation (SWAPO), as the representative of the Namibian people.

3. In the present case, it is the General Assembly, and not the Court, which has made any prior pronouncements in respect of legality. Further, in contrast to how matters stood as regards Namibia in 1971, the larger intractable problem (of which the wall may be seen as an element) cannot be regarded as one in which one party alone has been already classified by a court as the legal wrongdoer; where it is for it alone to act to restore a situation of legality; and where from the perspective of legal obligation there is nothing remaining for the other "party" to do. That is evident from the long history of the matter, and is attested to by Security Council resolutions 242 (1967) and 1515 (2002) alike.

4. In support of the misconceived analogy which serves both to assist so far as legal issues of discretion are concerned, as well as wider purposes counsel have informed the Court that "The problem ... is a problem between one State Israel and the United Nations." (See for example, CR 2004/3, p. 62, para. 31.) Of course, assimilation to the Namibia case, and a denial of any dispute save as between Israel and the United Nations, would also avoid the necessity to meet the criteria enunciated by the Court when considering whether it should give an opinion where a dispute exists between two States. But, as will be elaborated below, this cannot be avoided.

5. Moreover, in the Namibia Opinion the Assembly sought legal advice on the consequences of its own necessary decisions on the matter in hand. The General Assembly was the organ in which now the power to terminate a League of Nations mandate was located. The Mandate

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was duly terminated. But Assembly resolutions are in most cases only recommendations. The Security Council, which in certain circumstances can pass binding resolutions under Chapter VII of the Charter, was not the organ with responsibility over mandates. This conundrum was at the heart of the Opinion sought of the Court. Here, too, there is no real analogy with the present case.

6. We are thus in different legal terrain in the familiar terrain where there is a dispute between parties, which fact does not of itself mean that the Court should not exercise its competence, provided certain conditions are met.

[p. 225 S.O. Kooijmans] 19. I must confess that I have felt considerable hesitation as to

whether it would be judicially proper to comply with the request of the Assembly.

20. This hesitation had first of all to do with the question whether the Court would not be unduly politicized by giving the requested advisory opinion, thereby undermining its ability to contribute to global security and to respect for the rule of law. It must be admitted that such an opinion, whatever its content, will inevitably become part of an already heated political debate. The question is in particular pertinent as three members of the Quartet (the United States, the Russian Federation and the European Union) abstained on resolution ES–10/14 and do not seem too eager to see the Court complying with the request out of fear that the opinion may interfere with the political peace process. Such fears cannot be taken lightly since the situation concerned is a continuous danger for international peace and security and a source of immense human suffering.

21. While recognizing that the risk of a possible politicization is real, I nevertheless concluded that this risk would not be neutralized by a refusal to give an opinion. The risk should have been a consideration for the General Assembly when it envisaged making the request. Once the decision to do so had been taken, the Court was made an actor on the political stage regardless of whether it would or would not give an opinion. A refusal would just as much have politicized the Court as the rendering of an opinion. Only by limiting itself strictly to its judicial function is the Court able to minimize the risk that its credibility in upholding the respect for the rule of law is affected.

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[p. 240 Decl. Buergenthal] 1. Since I believe that the Court should have exercised its discretion and declined to render the requested advisory opinion, I dissent from its decision to hear the case. My negative votes with regard to the remaining items of the dispositif should not be seen as reflecting my view that the construction of the wall by Israel on the Occupied Palestinian Territory does not raise serious questions as a matter of international law. I believe it does, and there is much in the Opinion with which I agree. However, I am compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case. In reaching this conclusion, I am guided by what the Court said in Western Sahara, where it emphasized that the critical question in determining whether or not to exercise its discretion in acting on an advisory opinion request is "whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character" (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 28-29, para. 46). In my view, the absence in this case of the requisite information and evidence vitiates the Court’s findings on the merits.

[p. 265 S.O. Owada] 13. … acknowledging the fact that in the present case there is this undeniable aspect of an underlying legal controversy or a dispute between the parties involved, and keeping this aspect clearly in mind, I wish to state that the critical test for judicial propriety in exercising jurisdiction of the Court, which it undoubtedly has, should lie, not in whether the request is related to a concrete legal controversy or dispute in existence, but in whether "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" (I.C.J. Reports 1975, p. 25, para. 33; emphasis added). To put it differently, the critical criterion for judicial propriety in the final analysis should lie in the Court seeing to it that giving a reply in the form of an advisory opinion on the subject-matter of the request should not be tantamount to adjudicating on the very subject-matter of the underlying concrete bilateral dispute that currently undoubtedly exists between Israel and Palestine.

14. The reasoning that I have offered above leads me to the following two conclusions. First, the fact that the present case contains an aspect of addressing a bilateral dispute should not prevent the Court from exercising its competence. Second, however, this fact should have

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certain important bearing on the whole proceedings that the Court is to conduct in the present case, in the sense that the Court in the present advisory proceedings should focus its task on offering its objective findings of law to the extent necessary and useful to the requesting organ, the General Assembly, in carrying out its functions relating to this question, rather than adjudicating on the subject-matter of the dispute between the parties concerned.

5.4. Procedure Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004

[pp. 161-162] 56. 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. In its Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (I.C.J. Reports 1950, p. 72) and again in its Opinion on the Western Sahara, the Court made it clear that what is decisive in these circumstances is "whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character" (Western Sahara, I.C.J. Reports 1975, pp. 28–29, para. 46). Thus, for instance, in the proceedings concerning the Status of Eastern Carelia, the Permanent Court of International Justice decided to decline to give an Opinion inter alia because the question put "raised a question of fact which could not be elucidated without hearing both parties" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950, p. 72; see Status of Eastern Carelia, P.C.I.J., Series B, No. 5, p. 28). On the other hand, in the Western Sahara Opinion, the Court observed that it had been provided with very extensive documentary evidence of the relevant facts (I.C.J. Reports 1975, p. 29, para. 47).

57. In the present instance, the Court has at its disposal the report of the Secretary– General, as well as a voluminous dossier submitted by him to the Court, comprising

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not only detailed information on the route of the wall but also on its humanitarian and socio–economic impact on the Palestinian population. The dossier includes several reports based on on–site visits by special rapporteurs and competent organs of the United Nations. The Secretary–General has further submitted to the Court a written statement updating his report, which supplemented the information contained therein. Moreover, numerous other participants have submitted to the Court written statements which contain information relevant to a response to the question put by the General Assembly. The Court notes in particular that Israel’s Written Statement, although limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes; many other documents issued by the Israeli Government on those matters are in the public domain.

58. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. 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. There is therefore in the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion.

[p. 245 Decl. Buergenthal] 10. A final word is in order regarding my position that the Court should have declined, in the exercise of its discretion, to hear this case. In this connection, it could be argued that the Court lacked many relevant facts bearing on Israel’s construction of the wall because Israel failed to present them, and that the Court was therefore justified in relying almost exclusively on the United Nations reports submitted to it. This proposition would be valid if, instead of dealing with an advisory opinion request, the Court had before it a contentious case where each party has the burden of proving its claims. But that is not the rule applicable to advisory opinion proceedings which have no parties. Once the Court recognized that Israel’s consent to these proceedings was not necessary since the case was not bought against it and Israel was not a party to it, Israel had no legal obligation to participate in these proceedings or to adduce evidence supporting its claim regarding the legality of the wall. While I have my own views on whether it was wise for Israel not to produce the requisite

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information, this is not an issue for me to decide. The fact remains that it did not have that obligation. The Court may therefore not draw any adverse evidentiary conclusions from Israel’s failure to supply it or assume, without itself fully enquiring into the matter, that the information and evidence before it is sufficient to support each and every one of its sweeping legal conclusions.

[pp. 268-269 S.O. Owada] 22. On this point of facts and information relating to the present

case, it is undoubtedly true, as the present Opinion states, that "the Court has at its disposal the report of the Secretary-General, as well as a voluminous dossier submitted by him to the Court, comprising not only detailed information on the route of the wall but also on its humanitarian and socio-economic impact on the Palestinian population" (Advisory Opinion, para. 57). Indeed, there is ample material, in particular, about the humanitarian and socio-economic impacts of the construction of the wall. Their authenticity and reliability is not in doubt. What seems to be wanting, however, is the material explaining the Israeli side of the picture, especially in the context of why and how the construction of the wall as it is actually planned and implemented is necessary and appropriate.

23. This, to my mind, would seem to be the case, in spite of the Court’s assertion that "Israel’s Written Statement, although limited to issues of jurisdiction and propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes" (Advisory Opinion, para. 57). In fact my point would seem to be corroborated by what the present Opinion itself acknowledges in relation to the argument of Israel on this issue. Israel has argued that the wall’s sole purpose is to enable it effectively to combat terrorist attacks launched from the West Bank, or as the report of the Secretary-General puts it, "to halt infiltration into Israel from the central and northern West Bank" (Advisory Opinion, para. 80). However, the Court, in paragraph 137 of the Opinion, simply states that "from the material available to it, [it] is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives" (emphasis added). It seems clear to me that here the Court is in effect admitting the fact that elaborate material on this point from the Israeli side is not available, rather than engaging in a rebuttal of the arguments of Israel on the basis of the material that

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might have been made available by Israel on this point. Again in paragraph 140 of the Opinion, the Court bases itself simply on "the material before it" to express its lack of conviction that "the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction".

24. In raising this point, it is not my purpose to dispute the factual accuracy of these assertions, or to question the conclusions arrived at on the basis of the documents and the material available to the Court. In fact it would seem reasonable to conclude on balance that the political, social, economic and humanitarian impacts of the construction of the wall, as substantiated by ample evidence supplied and documented in the course of the present proceedings, is such that the construction of the wall would constitute a violation of international obligations under various international instruments to which Israel is a party. Furthermore, these impacts are so overwhelming that I am ready to accept that no justification based on the "military exigencies", even if fortified by substantiated facts, could conceivably constitute a valid basis for precluding the wrongfulness of the act on the basis of the stringent conditions of proportionality.

25. However, that is not the point. What is crucial is that the above samples of quotations from the present Opinion testify to my point that the Court, once deciding to exercise jurisdiction in this case, should be extremely careful not only in ensuring the objective fairness in the result, but in seeing to it that the Court is seen to maintain fairness throughout the proceedings, whatever the final conclusion that we come to may be in the end.

*

5.5. Review of Decisions of the United Nations Administrative Tribunal

855 Summaries of the Decisions

856

Maritime Delimitation and Territorial Questions between Qatar and Bahrain Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001 I.C.J. Reports 2001, p. 40

On March 16, 2001 the ICJ delivered its judgment in the case Qatar v. Bahrain. The dispute had been brought before the Court by an Application filed by Qatar on 8 July 1991 concerning the sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Quit’at Jaradah, and the delimitation of the maritime areas of the two states. Qatar founded the jurisdiction of the Court upon two agreements between the parties dated December 1987 and December 1990. The subject of the Court’s jurisdiction, according to the Applicant, was determined by the so-called Bahraini formula accepted by both Parties. In a Judgment of 1 July 1994 (cf. WCD III, p. 432) the Court found that the Parties had agreed to submit to the Court "the whole of the dispute" as circumscribed by the Bahraini formula, but that, in fact, it had before it only an Application by Qatar setting out that State’s specific claims in connection with the formula. The Court therefore decided to afford the Parties an opportunity to submit to it the whole of the dispute. After each of the Parties had filed a document on the question within the time-limit fixed, the Court, by a Judgment of 15 February 1995, found that on the basis of those documents it had jurisdiction to decide the whole of the dispute. Thus, the Court had to decide on the maritime delimitation, the sovereignty over the Hawar islands as well as the low-tide elevations Dibal and Qit’at Jaradah and the sovereignty over Zubarah and Janan. The significance of these islands and low-tide elevations was of an economic character due to the oil resources in the Persian Gulf. In its judgment the Court first gave an account of the complex history which forms the background of the dispute. Qatar and Bahrain are both States located in the southern part of the Arabian/Persian Gulf. Both States had been old Sheikhdoms. Since the middle of the 19th century Bahrain came under British influence while Qatar was under the influence of the Ottoman Empire. Later, also Qatar came under the protection of Great Britain due to an agreement concluded between Great Britain and the Ottoman Empire. Both States never became protectorates or colonies of Great Britain. In 1971 they were both admitted to the United Nations. In the course of time a great number of agreements was concluded, of which the 1913 "Convention relating to the Persian Gulf and Surrounding Territories" concluded between

Maritime Delimitation and Territorial Questions between Qatar and Bahrain 857 Great Britain and the Ottoman Empire was of particular interest. This Convention, which was never ratified, dealt in Section II with Qatar. Article 11 described the course of the line which was to separate the Ottoman Sanjak of Nejd from the peninsula of Al-Qatar. In an Agreement of 1914 which was ratified in the same year it was provided in Article III that the line separating Qatar from the Sanjak of Nejd was the one defined in Article 11 of the 1913 Convention. In 1925 the first oil concession was concluded between the Ruler of Bahrain and a British company which extended "throughout the whole of the territories under his control". From 1928 on negotiations were conducted concerning additional concessions in the area and in this context the question arose whether the Hawar islands were part of Bahrain or of Qatar. Finally, by a decree of 11 July 1939, the British Government decided that they were part of Bahrain. Qatar protested at least five times against this decision, the last protest being made in 1965. Also with regard to the dispute over the sovereignty over the peninsula of Zubarah Great Britain took a decision which was relevant for the decision. When in 1946 a British oil company sought permission to drill in certain areas of the continental shelf some of which might belong to Qatar, the British Government decided that this permission could not be granted until there had been a delimitation of the sea-bed between Bahrain and Qatar. By a letter of 1947 sent to the Rulers of Qatar and of Bahrain, the British Political Agent in Bahrain informed both states that the British Government had divided the sea-bed according to "equitable principles" and that the median line based generally on the configuration of the coastline was the dividing line. From this letter it followed furthermore that Bahrain had sovereignty over Dibal and Qit’at Jaradah which were considered as low-tide elevations as well as the Hawar islands. In 1964 the British Political Agent forwarded to the Qatari authorities a request for modification of the 1947 dividing line claiming that Dibal and Jaradah were to be considered as islands with territorial waters and that they belonged to Bahrain. Qatar denied the claims and recommended arbitration to settle the dispute, but no progress was achieved until 1971 when both states became members of the United Nations. From 1976 onwards the King of Saudi Arabia acted as a mediator and in 1987 both States accepted the settlement of the dispute by arbitration. The arbitral tribunal elaborated the socalled Bahraini formula according to which the parties agreed to request the ICJ to decide "any matter of territorial right or other title or interest which may be a matter of difference between them; and to draw a single maritime boundary between their respective maritime

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areas of seabed, subsoil and superjacent waters". Nevertheless the parties could not reach an agreement to submit the dispute to the ICJ. After using once more the good offices of the King of Saudi Arabia without success, Qatar unilaterally filed its Application to the Court. In its judgment the Court decided first of all the territorial claims since they were the basis for determining the maritime boundaries. The Court began by examining the question concerning Zubarah. According to the findings of the Court a Treaty of 1868 concluded between Great Britain and the Sheikh of Bahrain made it clear that Great Britain would not have accepted any attempt of Bahrain to pursue its claims to Zubarah through military action. Since that time Bahrain never again engaged in acts of authority in Zubarah. The Court further referred to the 1913 British-Ottoman Convention, cited above, which was never ratified, but which did represent the "accurate expression of the understanding of the parties at the time of signature" and to which the duly ratified British-Ottoman Treaty of 1914 makes reference. On this basis it was evident, according to the Court, that Great Britain and the Ottoman Empire had not recognized the sovereignty of Bahrain over the peninsula Qatar including Zubarah. Also in 1937 the British Government did not consider that Bahrain had sovereignty over Zubarah. The Court thus decided unanimously that sovereignty over Zubarah rested with Qatar. The Court then turned to the question of the Hawar islands, leaving aside in this context the question of Janan because it was disputed whether it belonged to the Hawars or not. The sovereignty over the Hawar islands was of utmost importance for the delimitation of the maritime zones. Bahrain contended that the decision of Great Britain of 1939 stating that the Hawar islands belong to Bahrain constituted an arbitral award, a consideration which the Court rejected because this decision lacked the preconditions of an arbitral award under international law. Nevertheless, the decision was of significance since both parties had consented to the British Government settling their dispute over the Hawar islands and that therefore the decision of 1939 must be regarded as a decision binding from the outset. The Court thus reached the conclusion that the Hawar islands belong to Bahrain. Having reached this decision, the Court found that it had not to rule on the arguments of the Parties based on the existence of an original title, effectivités, and the application of the principle of uti possidetis juris. In this context the Court was criticised in several separate opinions which did not accept that the Court had relied exclusively on the decision of 1939 without considering any other document or title. They also criticised that the Court accepted that the consent of Qatar to have Great Britain decide the question of the Hawar islands would imply also that Qatar would accept that decision. Since both states were at that time under the

Maritime Delimitation and Territorial Questions between Qatar and Bahrain 859 control of Great Britain they had no choice but to let Great Britain decide; however, this did not imply that the decision was intangible for all times. The Court then considered the Parties’ claim to Janan Island. The Parties differed on what was to be understood as Janan Island and whether it was part of the Hawar islands. The Court based its decision once more on the British decision of 1939. Since this decision did not define what was to be understood as Hawar islands or Janan Island the Court referred to several documents dating partly before, partly after the decision of 1939. Of particular interest in this context was the letter addressed in 1947 to both states by the British Political Agent concerning the delimitation of the sea-bed between them. This letter contained the statement that Janan could not be regarded as part of the Hawar islands so that Bahrain had no sovereignty over it. The Court considered this as an authoritative interpretation of the 1939 decision and concluded accordingly that the Janan Island belongs to Qatar. On the basis of the decision on the territorial claims the Court then turned to the maritime delimitation. The Parties had agreed that the delimitation was to be made in accordance with international law. Both Parties were furthermore in agreement that the Convention on the Law of the Sea, which was not yet ratified by Qatar, contained the relevant general international law applicable in the case. The Court was requested to draw a single maritime boundary between the different maritime areas. In the southern area, where the distance between the coasts is nowhere more than 24 nautical miles, the law on the delimitation of territorial waters was applicable; in the northern part where the coasts are not directly opposite but adjacent, the rules for the delimitation of the continental shelf and the exclusive economic zone were applicable. The law applicable for the delimitation of territorial waters is reflected in Art. 15 Law of the Sea Convention. Accordingly, the delimitation was based on the equidistance/special circumstances principle which departs from the baselines of the coasts of both states. Since both Parties had not fixed their baselines, the Court had to determine them in order to decide on the maritime boundary. The first question in this context concerned the relevant coasts. Qatar was of the opinion that these were essentially only the coasts of the mainland and that the high-water mark should be relevant. Bahrain considered itself as an archipelago or multiple-island State and claimed, on the basis of Art. 47 Law of the Sea Convention that for the drawing of the baselines all islands and rocks had to be respected. The Court considered that it was not asked in the submissions to decide whether Bahrain was an archipelago State and that it had not to take a position on this issue. The Court did furthermore not find that

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Bahrain could claim an exception from the drawing of straight baselines. Therefore, the Court went on to determine the relevant coasts. In this context it had to decide on some minor islands and low-tide elevations and their appurtenance to one or the Party. As to Qit’at Jaradah the Court came to the conclusion that it was an island – and thus relevant for the drawing of the baselines, belonging to Bahrain which had undertaken acts of sovereignty on this island. As to Dibal which was only a low-tide elevation, the Court had to determine whether as such it could be appropriated. The law of the sea does not provide any rules in this context so that it was not clear whether low-tide elevations are "territory" and can be compared to islands with regard to possible appropriation. According to the Court low-tide elevations which are situated in an overlapping area of the territorial sea have no territorial sea of their own and thus cannot generate the same rights as islands or other territory. The situation would, however, be different, if lighthouses or similar installations which are permanently above sea level have been built on them. Consequently, the Court found that for the purposes of drawing the equidistance line, such low-tide elevations must be disregarded. This decision met some criticisms in the separate opinions because the Court had decided on maritime questions which might be of great importance in the future without the necessary judicial restraint. Since it is nowadays possible to install lighthouses on any low-tide elevation the decision was, in particular according to Judge Oda, too far reaching because it can change the significance of low-tide elevations for the purpose of delimitation. On the basis of its findings of the baselines the Court determined the equidistance line. Also in this context questions of the appurtenance of some minor islets had to be resolved, such as Faht al Azm, which was considered as a special circumstance. Also Qit’at Jradah, a tiny island recognized to belong to Bahrain, was relevant as a special circumstance. If this island were relevant for the drawing of the baselines this would lead to a disproportionate effect on the equidistance line. Therefore, this island was regarded as a special circumstance in that the equidistance line was drawn directly east of Qit’at Jaradah. Also the low-tide elevation Dibal posed a special problem because the equidistance line would pass, under the given circumstances, through Dibal. The Court therefore, decided that Dibal would lie east of the equidistance line thus belonging to Qatar. With the exception of the most southern point which was dependent from the delimitation of the maritime boundaries between the Parties and Saudi Arabia, the equidistance line in the territorial sea was fixed in detail in the judgment.

Maritime Delimitation and Territorial Questions between Qatar and Bahrain 861 As to the delimitation east of the Hawar islands, the Court unanimously stated that the waters east of the islands until the coast of Bahrain were not internal Bahraini waters but territorial sea so that all states, including Qatar, have the right of peaceful passage through these waters. Finally the Court had to draw the single maritime boundary in the part of the area concerning the continental shelf and the exclusive economic zone, which also was to be undertaken on the basis of the equidistance/special circumstance rule. Therefore, the Court first drew the equidistance line and then examined whether special circumstances required an adjustment of that line. As a special circumstance Bahrain had claimed the pearling banks which the Court, however, did not consider as a special circumstance since this industry in fact had ceased to exist a considerable time ago. Qatar had referred to the sea-bed division in the letters of 1947 which it considered as a "decision". Also this circumstance was not accepted as "special" because neither of the Parties had ever accepted it as binding. Also the disparity of the lengths of the coasts of the Parties could not, as Qatar claimed, be considered as a special circumstance since the Hawar islands belonged, according to the decision of the Court, to Bahrain so that there was no relevant disparity between the length of the coasts of the Parties. The Court did not find any other special circumstance which could require any adjustment of the equidistance line and accordingly determined the delimitation lines by specifying 42 points with the exact co-ordinates. In some of the separate opinions the Court was criticized for drawing such a detailed delimitation line because in the case that there are no special circumstances not only one, but several delimitation lines are possible and that therefore the exact delimitation should be fixed by the Parties with the assistance of experts on the basis of the parameters prescribed in the Court’s decision as was the case in former delimitation decisions of the Court.

LaGrand Case (Germany v. United States of America) Judgment of 27 June 2001 I.C.J. Reports 2001, p. 466

On 27 June 2000 the Court delivered its judgment in the LaGrand case which had been brought before the Court on March 2, 1999 and in which it had indicated provisional measures of protection by an Order of 3 March 1999 (cf. World Court Digest III, p. 715). The case had

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LaGrand Case

arisen out of the fact that two German nationals, Karl and Walter LaGrand who had been permanently residing in the United States since their childhood and had, in 1982 committed a bank robbery and murdered a bank manager, were convicted for murder and sentenced to death. Since the brothers were of German nationality, the Vienna Convention on Consular Relations required the competent authorities of the United States to inform them without delay of their right to communicate with the consulate of Germany, which, however, did not occur. The LaGrands only learned in 1992 of their rights under the Convention from other sources. At that time, the LaGrands were, however, precluded by the "procedural default rule" from challenging the non-observation of the Convention by the American authorities. Karl LaGrand was executed on 24 February 1999 and the execution of Walter LaGrand was scheduled for 3 March 1999. On 2 March 1999, Germany brought the case before the Court together with a request for provisional measures, which were, in fact, indicated on 3 March 1999, stating inter alia that the United States should take all measures at its disposal to ensure that Walter LaGrand was not executed pending a final decision of the Court. However, the same day, Walter LaGrand was executed. In its judgment the Court first examines certain objections of the United States concerning the Court’s jurisdiction and the admissibility of Germany’s submissions. It found that it had jurisdiction under the Optional Protocol to the Vienna Convention on Consular Relations and that all submissions were admissible. Ruling on the merits the Court observed that the United States did not deny that it violated Article 36, paragraph 1 (b) of the Convention according to which it had to inform the LaGrands of their right to have the German consulate notified of their arrest. This breach amounted also to a violation of paragraphs (a) and (c) of that Article, which deal with the rights of communication and access of consular officers and their nationals. The Court further stated in favour of Germany’s first submission, namely that the United States not only breached its obligations to Germany as a State party to the Convention, but also violated the individual rights of the LaGrand brothers under Article 36, paragraph 1, which can be invoked before the Court by the national State. The second submission of Germany concerned the violation of Article 36, paragraph 2 of the Convention which requires the State parties to "enable full effect to be given to the purposes for which the rights accorded [under Article 36] are intended". By applying the procedural default rule and thus not allowing the detained individuals to challenge a conviction and

LaGrand Case

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sentence by invoking the violation of the Convention, the United States breached its obligations under Article 36 of the Convention. Germany’s third submission concerned the legal effect of provisional measures under Article 41 of the Statute, the interpretation of which had been the subject of extensive controversy in the literature. The Court, after interpreting this Article thoroughly, came to the conclusion that such orders do have binding effect and that in the present case the Order of 3 March 1999 created a legal obligation for the United States. The Court then had to consider whether the United States had implemented the Order and found that the measures taken by the United States were not sufficient as to be regarded as an implementation of the Order. In its fourth submission Germany sought an assurance that the United States would not repeat its unlawful acts. Although the Court noted that the United States was carrying out a vast and detailed programme in order to ensure compliance by its authorities with Article 36 of the Convention, it held nevertheless that if the United States, notwithstanding this commitment, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where prolonged detention or severe penalties were at stake. In such a case 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 The decision was taken by a large majority, only Judge Oda dissenting on all but two of the subparagraphs of the operative part of the Judgment, while Judge Buergenthal only dissented with regard to the admissibility of the submission concerning the consequences of noncompliance with the provisional measures.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 I.C.J. Reports 2002, p. 3

On 17 October 2000 the Democratic Republic of the Congo (hereinafter "the Congo") filed an Application against Belgium in respect of a dispute concerning an "international arrest warrant in absentia" issued on 11 April 2000 by an investigating judge of the Brussels Tribunal de

864

Arrest Warrant of 11 April 2000

première instance against Mr. Yerodia Ndombasi, then Minister of Foreign Affairs in office of the Congo. In that warrant, which was circulated internationally, the judge accused Mr. Yerodia of having made certain speeches in the Congo in August 1998 representing an incitement to racial hatred. He charged the Minister, who was not a Belgian national and not a resident of Belgium or present in that country, with grave breaches of the Geneva Conventions of 1949 and of the additional Protocols thereto as well as crimes against humanity. In its application the Congo claimed that Belgium should annul that warrant. It contended in the first place that the investigating judge was not entitled to hold himself competent in respect of the offences in question by relying on universal jurisdiction not recognized by international law. Secondly, the Congo argued that the charges had been brought in defiance of the immunities enjoyed by incumbent Ministers of Foreign affairs. In the subsequent proceedings, however, the Congo relied only on the second limb of its argument. The Court did accordingly not rule upon the first question concerning the universal jurisdiction of Belgium to issue an arrest warrant in absentia. In its judgment the Court decided by 13 votes to 3 that the issuance and international circulation of the disputed arrest warrant had failed to respect the immunity from criminal jurisdiction and inviolability which Mr. Yerodia as a Foreign Minister enjoyed under international law. The Court first rejected certain objections of Belgium based on the fact that Mr. Yerodia was no longer Minister of Foreign Affairs or even member of the Government of the Congo, at the time that the Court was dealing with the case. Belgium had argued, therefore, that there did no longer exist a legal dispute between the Parties and that the Court lacked jurisdiction. However, according to its constant jurisprudence, the Court decided that its jurisdiction must be determined at the time of the institution of the proceedings and that at that time there existed clearly a dispute between the parties. Also the second objection was dismissed according to which the case was without object, moot, due to the fact that Mr. Yerodia did no longer hold office as Minster of Foreign Affairs. The Court found, however, that since the Congo continued to seek the cancellation of the arrest warrant and Belgium continued to dispute the Congo’s submissions there clearly existed a dispute. Nor did the Court admit the third objection alleging that the Congo’s claims were inadmissible because of a change in the underlying facts producing a transformation of the dispute before the Court. In its fourth objection Belgium had challenged the admissibility of the application, because, due to the change in Mr. Yerodia’s situation, the case was now one of diplomatic protection

Arrest Warrant of 11 April 2000

865

where the individual being protected had not exhausted the local remedies. As the Congo had never invoked individual rights of Mr. Yerodia, and as furthermore the relevant time for the admissibility of an application is that of its filing, this objection was also dismissed. Finally with regard to a subsidiary argument of Belgium concerning the question of universal jurisdiction that the Congo had no longer relied upon, the Court observed that, while in accordance with a well established principle it is not entitled to decide upon questions not asked of it, the non ultra petita rule cannot preclude the Court from addressing certain legal points in its reasoning without ruling on them in the operative part of the judgment. In its decision on the merits of the case the Court recalled that immunities accorded to Ministers of Foreign Affairs under customary international law are granted not for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. After having analysed those functions the Court concluded that throughout the duration of the office a Minister of Foreign Affairs, when abroad, enjoys full immunity from criminal jurisdiction and inviolability. This is, according to the Court, the case whether the Minister is present in foreign territory in an official or private capacity, whether the acts in question were performed before he or she assumed the office or during the period of office, and finally, whether the acts were performed in an official or in a private capacity. The Court then turned to the question whether this is so also when a Minister of Foreign Affairs is suspected of having committed war crimes or crimes against humanity. The Court carefully examined State practice concerning that issue, including national legislation and decisions of higher national courts, such as the House of Lords in the Pinochet case and the French Court of Cassation in the Qaddafi case. It also considered the statutes and jurisprudence of international criminal courts and came to the conclusion that there existed no exception under international law to the rule according immunity from criminal process before foreign national courts and inviolability. The Court further made it clear that a distinction must be drawn between jurisdiction of courts and the immunity of those appearing before them. Jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Furthermore it pointed out that immunity from jurisdiction enjoyed by incumbent Ministers of Foreign affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. While immunity is procedural in nature, criminal responsibility is a question of substantive law. The Court made it clear that, provided that it has jurisdiction under international law, a court of one State may try a former Minister of Foreign Affairs of

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another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Finally, the Court recalled the powers which may be conferred in this area on international criminal courts. It observed that, for various reasons, immunity does not mean impunity. On the basis of these considerations the Court found that the issuance and circulation of the disputed arrest warrant had been unlawful and that Belgium must, by means of its own choosing, cancel the arrest warrant and so inform the authorities to whom that warrant had been circulated. Finally, the Court stated that its finding that the arrest warrant was unlawful under international law constituted a form of satisfaction which will make good the moral injury complained of by the Congo. The separate opinions concentrated mainly on the question of universal jurisdiction which had been part of the application of the Congo but finally was not upheld. President Guillaume was of the opinion that under international law a State normally has jurisdiction over an offence committed abroad only if the offender, or at the very least, the victim, has the nationality of that State, or if the crime threatens its internal or external security. Additionally, States may exercise jurisdiction in cases of piracy and other situations governed by various international conventions if the offender is present on their territory. However, apart from these cases, international law does not accept universal jurisdiction, still less does it accept universal jurisdiction in absentia. This opinion is also supported in the declaration of Judge Ranjeva and the separate opinion of Judge Rezek. Also Judge Koroma shared, in his separate opinion, the same view and held, as did the formerly mentioned Judges, that the logic of the case would have required to first treat the question of jurisdiction and then, secondly, the question of immunity. However, he pointed out that the Court was free to choose how to proceed in a certain case. Judges Higgins, Kooijmans and Buergenthal, on the contrary, underlined in their joint separate opinion that while there may be no general rule specifically authorising the right to exercise universal jurisdiction, the absence of a prohibitive rule and the growing international consensus on the need to punish crimes regarded as most heinous by the international community, indicate that the arrest warrant did not as such violate international law. Judge Oda dissented on all of the provisions of the judgment. He stressed that the Court should have declared ex officio that it lacked jurisdiction to entertain the application because there was at the time no legal dispute between the Parties and because the Congo had changed the subject matter. Regarding diplomatic immunity, Judge Oda divided the question into two issues: whether in principle a Foreign Minister is entitled to the same

Arrest Warrant of 11 April 2000

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immunity as diplomatic agents, and whether diplomatic immunity can be claimed in respect of serious breaches of humanitarian law. This issue was also the relevant aspect in the dissenting opinion of Judge Al-Khasawneh, who argued that the need for effective combating of grave crimes represents a higher norm than the rules on immunity and should prevail in case of conflict. Judge ad hoc Van den Wyngaert concentrated in her dissenting opinion mainly on the findings of the Court that there is a rule of customary international law granting immunity to incumbent Foreign Ministers and on the question of universal jurisdiction in absentia. According to her understanding Belgium might have acted contrary to international comity, but not in violation of a rule of international law.

Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Request for the Indication of Provisional Measures Order of 10 July 2002 I.C.J. Reports 2002, p 219

On 28 May 2002, the Democratic Republic of the Congo (hereinafter “Congo”) instituted proceedings against Rwanda in respect of a dispute concerning "massive, serious and flagrant violations of human rights and of international humanitarian law" alleged to have been committed "in breach of the ‘International Bill of Human Rights’, other relevant international instruments and mandatory resolutions of the United Nations Security Council". It asked the Court to adjudge and declare that all Rwandan armed forces should quit the territory of the Democratic Republic of the Congo, that Rwanda was under an obligation to immediately withdraw its armed forces and the like from Congolese territory and that the Congo was entitled to compensation from Rwanda. Concerning the jurisdiction of the Court, the Congo relied on compromissory clauses contained in several universal human rights instruments and the founding treaties of the WHO and the UNESCO. It also invoked the ius cogens character of the norms allegedly violated by Rwanda. Along with its application, the Congo filed a request for the indication of provisional measures. Rwanda, in contrast, arguing that the Court manifestly lacked jurisdiction, sought the removal of the case from the list.

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Armed Activities on the Territory of the Congo (Congo v. Rwanda)

The Court decided on the request for the indication of provisional measures by an Order of 10 July 2002. In its Order, the Court stated its concern because of the human tragedy in the eastern parts of the Congo. The Court found it necessary to emphasize "that all parties to proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and other rules of international law, including humanitarian law". The Court then stressed that it did not automatically possess jurisdiction over legal disputes between States but needs their consent. In procedings concerning the indication of provisional measures its jurisdiction had to be established prima facie. Since Rwanda, in contrast to the Congo, had not made a declaration according to Article 36, paragraph 2, of the Statute, the Court considered that its jurisdiction could not be founded on that provision. Hence, it ascertained its prima facie jurisdiction solely on the basis of the treaties and conventions relied upon by the Congo pursuant to Article 36, paragraph 1, of the Statute. However, from none of the instruments mentioned could it derive the existence of prima facie jurisdiction. Accordingly, it declined the Congo’s demand for indication of provisional measures. At the same time, the Court did not conclude on a manifest lack of jurisdiction and hence did not grant Rwanda’s request that the case be removed from the List. Judges Koroma, Higgins, Buergenthal and Elaraby added Declarations to the Order. Judges ad hoc Dugard and Mavungu appended Separate Opinions.

Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment of 10 October 2002 I.C.J. Reports 2002, p. 303

On 29 March 1994 Cameroon filed an Application instituting proceedings against Nigeria concerning a dispute described as relating essentially to the question of sovereignty over the Bakassi Peninsula. Cameroon further stated in its Application that the delimitation of the maritime boundary between the two States has remained a partial one and that, despite many attempts to complete it, the two parties had been unable to do so. It requested the Court to determine the course of the maritime boundary between the two States beyond the line fixed by the Maroua Declaration of 1975.

Land and Maritime Boundary between Cameroon and Nigeria

869

On 6 June 1994 Cameroon filed an Additional Application for the purpose of extending the subject of the dispute to a further dispute relating essentially to the question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad. Cameroon also requested the Court to specify definitively the frontier between the two States from Lake Chad to the sea, and asked it to join the two Applications and to examine the whole in a single case. Nigeria did not object to the Additional Application being treated as an amendment to the initial Application. In its Judgment of 11 June 1998 on the preliminary objections raised by Nigeria the Court found that it had jurisdiction to adjudicate upon the merits of the dispute and that Cameroon’s requests were admissible (cf. WCD III, p. 690). The following request for interpretation submitted by Nigeria was declared inadmissible by the Court by a Judgment dated 25 March 1999 (cf. WCD III, p.693). The counter-claims raised by Nigeria in 1999 were declared admissible by the Court in its Order of 30 June 1999 (cf. WCD III, p. 694). On the same day the Republic of Equatorial Guinea filed in the Registry an Application for permission to intervene in the case pursuant to Art. 62 of the Statute. According to that Application, the object of the intervention sought was to protect the legal rights of the Republic of Equatorial Guinea in the Gulf of Guinea by all legal means available and to inform the Court of the nature of the legal rights and interests of Equatorial Guinea that could be affected by the Court’s decision in the light of the maritime boundary claims advanced by the parties to the case before the Court. The Court authorized Equatorial Guinea to intervene by an Order of 21 October 1999 (cf. WCD III, p. 695). In its Judgment of 10 October 2002 the Court first defined the boundary line in the Lake Chad area. It then determined the line from Lake Chad to the Bakassi Peninsula, before examining the question of the boundary in Bakassi and of sovereignty over the peninsula and addressing the question of the delimitation between the two States’ respective maritime areas. The last part of the Judgment is devoted to the issues of State responsibility raised by the Parties. For the Lake Chad area, the Court decided that the boundary is delimited by the ThomsonMarchand Declaration of 1929-1930, as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 between Great Britain and France. The Court rejected Nigeria’s claim based on its presence in certain areas of Lake Chad and followed Cameroon’s argument that, as the holder of a conventional territorial title to the disputed areas, it did not have to demonstrate the effective exercise of its sovereignty over those areas, since a valid conventional title prevails over any effectivités to the contrary. The Court stressed that the highly controversial

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Land and Maritime Boundary between Cameroon and Nigeria

theory of historical consolidation that was invoked by Nigeria, cannot replace the established modes of acquisition of title under international law. The facts and circumstances put forward by Nigeria concerned a period of only some 20 years, that even according to the theory relied on was far too short. As there was a pre-existing title by Cameroon the decisive question was whether Cameroon acquiesced in the establishment of a change in treaty title on the basis of Nigeria’s activities in that area. Evaluating the evidence presented the Court concluded that the situation was essentially one where the effectivités adduced by Nigeria did not correspond to the law. Accordingly preference was given to the holder of the title. Between Lake Chad and the Bakassi Peninsula, the Court confirmed the delimitation of the boundary as determined by the Thomson-Marchand Declaration and the Anglo-German Agreements of 11 and 12 April 1913. The Court rejected Nigeria’s claim to a title over the Bakassi Peninsula. On the date of its independence Cameroon succeeded to title over Bakassi as established by the Anglo-German Agreement of 11 March 1913. The Court found that the invocation of the theory of consolidation of historic titles cannot in any event vest title to Bakassi in Nigeria, where its "occupation" of the peninsula was adverse to Cameroon’s prior treaty title and where, moreover, the possession had been for a limited period. The Court also affirmed the finding of a Chamber in the Frontier Dispute case (Burkina Faso/Republic of Mali) that in a case of a conflict between title and effectivités, preference will be given to the former. However, the question rather was if Cameroon had acquiesced in the loss of the treaty title that it inherited upon independence. As Cameroon inter alia had since its independence engaged in activities which made clear that it in no way was abandoning its title to Bakassi, Nigeria could not have been acting à titre de souverain before the late 1970s. The evidence in the ensuing period did not indicate acquiescence by Cameroon in the abandonment of its title in favor of Nigeria. Finally, the Court fixed the course of the boundary between the two States’ maritime areas which concerned two different sectors: the delimitation in the first sector reaching to a point G had already been established by several Agreements between the parties so that the Court found that it had not to be addressed again. The boundary beyond point G had not been established by agreement. The Court therefore proceeded to the delimitation according to its usual pattern by first drawing the equidistance line and than examining whether special circumstances required an adjustment of that line what was denied with regard to all special circumstances invoked by Cameroon in the present case. The Court consequently found that

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the equidistance line represents an equitable result for the delimitation of the Gulf area beyond point G. As to the consequences following from the judgment, the Court stated that Nigeria was under an obligation to withdraw expeditiously and without condition its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi Peninsula. It also requested Cameroon to withdraw any administration or military or police forces which may be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which pursuant to the Judgment fall within the sovereignty of Nigeria. The Court found that Nigeria had the same obligation in regard to territories in that area which fall within the sovereignty of Cameroon. The Court took note of Cameroon’s undertaking, given at the hearings, to continue to afford protection to Nigerians living in the Bakassi peninsula and in the Lake Chad area. Cameroon’s submissions regarding the State responsibility of Nigeria were rejected, as well as Nigeria’s counter-claims on the grounds that neither of the Parties sufficiently proved the alleged facts or their imputability to the other Party. Judges Oda, Herczegh and Rezek appended declarations to the Judgment; Judges Al-Khasawneh, Ranjeva and Parra-Aranguren and Judge ad hoc Mbaye appended separate opinions; Judge Koroma and Judge ad hoc Ajibola dissented.

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

On 30 September 1998, Indonesia and Malaysia filed at the Registry of the Court a Special Agreement, which was signed in Kuala Lumpur on 31 May 1997 and entered into force on 14 May 1998. In accordance with this Special Agreement, the Parties requested the Court 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." Pulau Ligitan and Pulau Sipadan are two tiny islands located in the Celebes Sea off the north-east coast of the island of Borneo and lie approximately 15 nautical miles apart.

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Sovereignty over Pulau Ligitan and Pulau Sipadan Application of the Philippines for permission to intervene Judgment of 23 October 2001 I.C.J. Reports 2001, p. 575

On 13 March 2001, the Philippines filed an Application for permission to intervene in the case, invoking Article 62 of the Statute of the Court. According to the Application, the Philippine interest of a legal nature which may be affected by a decision in the present case "is solely and exclusively addressed to the treaties, agreements and other evidence furnished by the Parties and appreciated by the Court having a direct or indirect bearing on the matter of the legal status of North Borneo." The object of the intervention requested was inter alia (i) to preserve and safeguard the historical and legal rights and (ii) to intervene in order to inform the Court of the nature and extent of the historical and legal rights. In its Judgment, the Court did not grant the Application to intervene in the proceedings under Article 62 of the Statute of the Court. After recalling the procedural history of the case, the Court considered the contention by the Parties that the Application for permission to intervene should not be granted because of its late submission by the Philippines and because of the Philippine’s failure to annex documentary or other evidence in support of the Application. The Court observed that, notwithstanding that the Application was not filed "as soon as possible", as contemplated by Art. 81(1) of the Rules of Court, the Philippines cannot be held to be in violation of the requirement of that same Article, according to which an Application for permission to intervene should be filed "not later than the closure of the written proceedings." In fact, on the date of the filing of the Philippine Application, neither the Court nor third States could have known whether the written proceedings had come to an end since the Special Agreement provided for the possibility of one more round of written pleadings, which eventually were not filed. The Court further emphasized that, while Art. 81 of the Rules of Court indeed provides that the application shall contain a list of any documents in support, there is no requirement that the State seeking to intervene should necessarily attach such documents to its application. The Court therefore concluded that the Philippine Application was not filed out of time and contained no formal defect. The Court then considered the objections based on the absence of a jurisdictional link. It recalled that the Philippines specified that it was seeking to intervene in the case as a non-

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party. Hence, the Court found that the absence of a jurisdictional link between the Philippines and the Parties to the main proceedings did not present a bar to the Philippine intervention. Finally, the Court considered the arguments of the Parties that the Application to intervene cannot be granted for the reasons, first, that the Philippines had not established the existence of an "interest of a legal nature" justifying the intervention sought, and, secondly, that the object of the intervention would have been inappropriate. The Court began by recalling that the Philippines did not seek to intervene in the case because it has a territorial interest on Sipadan and Ligitan islands, but because it believed that its claim of sovereignty over North Borneo might be affected by the Court’s reasoning or interpretation of treaties in issue in the dispute between Indonesia and Malaysia. The Court found that the interest of a legal nature to be shown by a State seeking to intervene is not limited to the dispositif alone of a judgment, but may also relate to its reasons. It went on to consider the question whether the interest invoked by the Philippines might be affected within the sense of Art. 62 of the Statute. It noted that in outlining its claim, the Philippines had emphasized the importance of the instrument entitled "Grant by Sultan of Sulu of territories and lands on the mainland of the island of Borneo." This instrument was said by the Philippines to be its "primal source" of title in North Borneo. The Philippines interpreted the instrument as a lease and not as a cession of sovereign title. However, the Court observed that neither Indonesia nor Malaysia relied on the 1878 grant as a source of title to Ligitan and Sipadan islands. After consideration of other instruments invoked by the Philippines in support of its claim, the Court observed that, as regards none of them had the Philippines been able to discharge its burden of demonstrating that it had an interest of a legal nature specific to it that may be affected, within the sense of Art. 62 of the Statute. The Philippines had shown in these instruments no legal interest that might have been affected by reasoning or interpretations of the Court in the main proceedings, either because they formed no part of the arguments of Indonesia and Malaysia or because their respective reliance on them did not bear on the issue of retention of sovereignty by the Sultanate of Sulu as described by the Philippines in respect of its claim in North Borneo. The Court concluded therefore that notwithstanding that the first two of the objects indicated by the Philippines for its intervention were appropriate, the Philippines had not discharged its obligation to convince the Court that specified legal interests might have been affected in the particular circumstances of this case.

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Appended to the Judgment of the Court are a dissenting opinion, a declaration and three separate opinions. The separate opinion appended by Judge ad hoc Franck is of special interest because in his view the Court was bound to take judicial notice of the momentous international legal development brought about by the adoption and implementation of the right of self-determination. Accordingly, whatever interest the Philippines might have inherited from the Sultan of Sulu cannot now be held to prevail over a validated exercise of such a fundamental a right.

Judgment on the Merits of 17 December 2002 I.C.J. Reports 2002, p. 625

In its judgment on the merits, the Court first gave an overview of the complex historical background of the dispute which arose in 1969 in the context of the delimitation of the continental shelf between both states. Diplomatic negotiations did not lead to a solution of the dispute and finally the Parties concluded a special agreement for submitting the dispute to the Court which had to decide whether sovereignty of the islands Ligitan and Sipadan lay with Indonesia or Malaysia. Indonesia claimed sovereignty over the disputed islands in particular on the basis of the Convention concluded between Great Britain and the Netherlands in 1891 for the purpose of "defining the boundaries between the Netherlands possessions in the Island of Borneo and the States in that Island which [were] under British protection". Furthermore, Indonesia invoked a series of effectivités, both Dutch and Indonesian, which it claimed confirmed its conventional title. Finally, Indonesia contended that if the Court would not accept its title based on the 1891 Convention, it could still claim sovereignty over the islands as successor to the Sultan of Bulungan. Malaysia claimed that it acquired sovereignty over the islands following a series of alleged transmissions of the title originally held by the former sovereign, the Sultan of Sulu, and subsequently passed to Spain, to the United States, to Great Britain on behalf of the State of North Borneo, to the United Kingdom of Great Britain and Northern Ireland, and finally to Malaysia itself. This title was confirmed by a certain number of British and Malaysian effectivités. These effectivités had in any case replaced any Netherlands title to the islands if

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ever the Court were to conclude that the islands had originally belonged to the Kingdom of the Netherlands. The Court first examined the claim relying on the Convention of 1891 which established the 4°10’ parallel of latitude as the dividing line between the British and the Dutch possessions. In interpreting the relevant Article IV of the Convention the crucial question was whether the terms "across the Island of Sebatik" was to describe, "in English and in Dutch, a line that crosses Sebatik from the west coast to the east coast and goes no further" or whether it provided beyond the land boundary also for the maritime delimitation and thus the appurtenance of the tiny islands. In applying the rules of interpretation as laid down in the Vienna Convention on the Law of Treaties the Court came to the conclusion that the text of Article IV only concerned the territorial delimitation because the delimitation ended at the external points on the territory. Even a map appended to the Dutch Explanatory Memorandum annexed to the draft law of ratification of the Convention was not helpful for it contained four different lines without showing the disputed islands at all. The Court concluded therefrom that the Parties to the Convention were not even aware of these islands and that furthermore the map could not be considered as part of the Convention according to Article 31, paragraph 2 (b) of the Vienna Convention. Also the object and purpose of the Convention could not clarify the question of the appurtenance of the islands. The object of the Convention was that of "defining the boundaries between the Netherlands possessions in the island of Borneo and the States in that island which are under British protection" (emphasis added by the Court). Nothing in the Convention suggested, according to the Court’s findings, that the parties intended to delimit the boundary between their possessions to the west of the islands of Borneo and Sebatik or to attribute sovereignty over any other island. This conclusion was also in accordance with the travaux préparatoires and the subsequent practice of the parties comprising several agreements and oil concessions. The Court came therefore to the conclusion that Article IV of the Convention did not establish any allocation line beyond the territory of the islands of Borneo and Sebatik and therefore could not serve as title transferring sovereignty over the disputed islands to Indonesia. The Court then turned to title by succession. Indonesia claimed the title as a successor to the Netherlands’ possessions which in turn had acquired its title through contracts with the Sultan of Bulungan. The Court came, however, to the conclusion that the contracts concluded between the Netherlands and the Sultan of Bulungan could not be regarded as a basis for title

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of Indonesia because the disputed islands did not belong to the islands referred to in these contracts. However, the Court could also not find that title over the islands lay with Malaysia on the basis of an uninterrupted chain of transmissions going back to the Sultan of Sulu. First of all, it was not clear whether the islands had ever belonged to the Sultan of Sulu and furthermore, the islands were not mentioned by name in any of the international legal instruments presented by Malaysia to prove the alleged transfer of title. This was the case for the Protocol concluded between Spain and the Sultan of Sulu in 1878 whereby the Sultan of Sulu ceded the "Archipelago of Sulu and the dependencies thereof" to Spain. The Court found, however, that by this Protocol the Sultan had relinquished the sovereign rights over all his possessions in favour of Spain, so that Spain was the only state which could have laid claim to Ligitan and Sipadan, but there was no evidence that it did so. The next link of the chain of transfers over title was the Treaty of 1900 between the United States and Spain whereby Spain relinquished claim of all titles to any and all islands belonging to the Philippine Archipelago so that any claim to Sipadan and Ligitan that Spain might have had was transferred to the United States. However, the United States themselves was not sure which islands it had acquired and an Exchange of Notes with Great Britain of 1907 did also not clarify the situation because it only concerned questions of administration, not of sovereignty. Only in 1930 a Convention was concluded between the United States and Great Britain in which a line was drawn separating the islands belonging to the Philippine Archipelago on the one hand and the islands belonging to the State of North Borneo on the other hand. By concluding this Convention, the United States relinquished any claim it might have had to Ligitan and Sipadan. But since it was not clear whether the United States had ever claimed title over the islands the Court could not conclude with certainty that by the 1930 Convention title to Sipadan and Ligitan was transferred from the United States to Great Britain. In conclusion, the Court found that there was not an uninterrupted series of transfers of title from the Sultan of Sulu to Malaysia since it could not be established with certainty that these islands had ever belonged to the Sultan. The Court therefore had to examine whether sovereignty over the disputed islands could be founded on effectivités as an independent and separate issue since it had found that neither of the Parties had a treaty-based title to the islands. The Court accordingly had to examine whether one of the Parties had exercised continuous peaceful possession and administration as display of public authority over the islands. The effectivités claimed by Indonesia did, in the view of the Court, not fulfil these requirements, for the Dutch and Indonesian patrols of the

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respective navies in the area as well as activities of fishermen were not of a legislative or regulatory character and Indonesian Act No. 4 of 1960 which draw Indonesia’s archipelagic baselines, did not mention Ligitan and Sipadan as relevant base-points. Therefore the activities relied upon by Indonesia did not constitute acts à titre de souverain reflecting the intention to act in this capacity. The effectivités invoked by Malaysia concerned control over the taking of turtles and the collection of turtle eggs, allegedly a most important economic activity on Sipadan for many years. Furthermore, Malaysia relied on the establishment of a bird sanctuary on Sipadan established in 1933 and the construction of lighthouses on both islands by the British North Boneo colonial authorities which are maintained to this day by the Malaysian authorities. These activities did reflect, in the view of the Court, regulatory and administrative assertions of authority over territory which was specified by name. The Court noted that the activities relied upon by Malaysia, both in its own name and as successor state to Great Britain were modest in number but diverse in character and included legislative, administrative and quasijudicial acts. They were exercised over a considerable period of time and showed the pattern revealing an intention to exercise State functions in respect of the two islands. The Court furthermore stressed that neither Indonesia nor its predecessor, the Netherlands, ever protested against these activities being carried out by Malaysia. Given these circumstances the Court concluded by sixteen votes to one that Malaysia has title to Ligitan and Sipadan on the basis of the effectivités referred to above. The dissent was expressed by the ad hoc Judge of Indonesia Franck who would have preferred the Court to found its decision on the 1891 Convention instead of embarking on relying on such irrelevant effectivités as the collection of turtle eggs and two lighthouses. According to Judge Franck, the 1891 Convention was aimed "to transform a zone of conflict into a zone of peace. Its purpose requires not just deference but generosity. It is not to be construed by the gimlet eye as if it were a contract for the sale of barley". Thus, the Court should have interpreted the Convention broadly because treaties establishing boundaries, borders and lines of allocation between States are intended to resolve conflicting territorial claims comprehensively in order to play an important role in establishing world peace.

878

Revision in the Genocide Convention Case 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 Judgment of 3 February 2003 I.C.J. Reports 2003, p. 7

On 23 April 2001 the Federal Republic of Yugoslavia (hereinafter FRY) instituted proceedings before the Court on the basis of Art. 61 of the Statute requesting the Court to revise the Judgment delivered by it on 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, in which the Court had found that it has jurisdiction under the Genocide Convention to hear the case (ICJ Reports 1996 (II), p. 595; cf. WCD III, p. 702). On 3 February 2003 the Court delivered its Judgment on the request for revision finding it inadmissible under the terms of Article 61 of the Statute of the Court. In its reasoning the Court first recalled the procedural history leading up to the Court’s Judgment of 11 July 1996. It then turned to the conditions under which an application for revision may be made which is the case only when it is "based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence" (Art. 61 Statute). Such a fact must have been in existence prior to the Judgment and must have been discovered subsequently. A fact which occurs several years after a judgment has been delivered is not a "new" fact within the meaning of Art. 61 irrespective of the legal consequences that such a fact may have. The "new" fact which the FRY invoked in the present case was its admission to the United Nations on 1 November 2000. According to the argument of the FRY its admission to the United Nations revealed two facts which had already existed in 1996 but had been unknown at that time: namely, that it was not then a party to the Statute of the Court (Art. 93 (1) of the UN Charter) and that it was not bound by the Genocide Convention which according to its Art. XI is open for ratification only to Member States of the United Nations. The Court did not share this view but held that the FRY "bases its Application for revision on the legal consequences which it seeks to draw from facts subsequent to the Judgment which it is asking to have revised" and which therefore cannot be regarded as new facts within the meaning of Art. 61. The crucial point was the unclear situation of the FRY with regard to its membership as a

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successor to the Socialist Federal Republic of Yugoslavia (hereinafter SFRY) in the United Nations obtaining already when provisional measures were indicated in the case in 1993 and persisting also in 1996 when the judgment on jurisdiction was given. In its resolution 47/1 of 22 September 1992 the General Assembly had considered "that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations" and therefore decided "that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly". This was, however, not understood as terminating the membership of Yugoslavia within the United Nations which was underpinned by the fact that the FRY paid its contributions to the budget of the United Nations as fixed after the dismemberment of the SFRY. In other organs the FRY was permitted to take part in the work, e.g. the ECOSOC. The other States having come into existence after the dismemberment of the SFRY - Croatia, Bosnia and Herzegovina, Slovenia and Macedonia - had always contested that the FRY was the legal successor of the SFRY. It was thus clear that only the admission "of a new Yugoslavia under Art. 4 of the Charter will terminate the situation created by resolution 47/1". This "sui generis position" of the FRY was terminated by resolution 55/12 of 1 November 2000 by which the General Assembly decided to admit the FRY to membership in the United Nations, which was followed by a clarification of the status of the FRY with regard to treaties concluded by the SFRY. In this context the FRY, on 6 March 2001, ratified the Genocide Convention, making a reservation with regard to Art. IX which provides for the jurisdiction of the International Court of Justice in case of disputes arising out of the Convention. Bosnia and Herzegovina as well as Croatia, which both had brought an application against Yugoslavia on the basis of the Genocide Convention, objected to that reservation which, according to their view, was incompatible with the object and purpose of the Convention. The Court found in this context that its decision of 1996 in which it affirmed its jurisdiction under the Genocide Convention was correct since the FRY had declared on 27 April 1992, the date when it came into existence, that it was a successor to the SFRY and would respect all its treaty obligations. Evaluating these facts with regard to Art. 61 of the Statute, the Court found that the conditions of this article were not satisfied. Since Art. 61 requires that the facts had already existed when the judgment was given and only subsequently been revealed, facts occurring several years

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after the judgment are not new facts in the meaning of Art. 61. The admission of the FRY to the United Nations took place on 1 November 2000, clearly after the delivery of the Judgment of 11 July 1996 and could, thus, not be regarded as a new fact under Art. 61 of the Statute. The FRY had, however, argued that its admission to the United Nations had only revealed two new facts, namely the non-membership of the FRY to the Statute of the Court and the Genocide Convention, and therefore the Court examined also this question. It found, however, that these were also not new facts, but only consequences resulting from a fact which itself occurred subsequent to the Judgment of 1996. Since General Assembly Resolution 47/1 had not clarified the situation, the status of the FRY had to be determined on a case by case basis. The resolution did not affect the right of the FRY to appear before the Court or to be a party to a dispute before the Court under the conditions laid down by the Statute, nor did it affect the position of the FRY with regard to the Genocide Convention. Therefore, the Court, by 10 to 3 votes, dismissed the application for revision as inadmissible. The dissenting opinions of Judges Vereshchetin, Rezek and Judge ad hoc Dimitrijevic as well as the separate opinion, in fact dissenting, of Judge Koroma concentrated essentially on the question whether the admission of the FRY to the United Nations was or revealed a new fact in the meaning of Art. 61. They underlined that the judgment of 1996 relied on the assumption that the FRY was a member of the United Nations. This assumption was erroneous, however, as revealed by the new fact, the admission of the FRY to the United Nations, making Art. 61 of the Statute applicable. Judge ad hoc Dimitrijevic insisted on the fact that it was illogical to invite the FRY to apply for membership in the United Nations and not to draw therefrom the conclusion that it had not been a member prior to admission. Judge Rezek pointed to an additional rather delicate aspect namely that the FRY of today is not identical to Yugoslavia (Serbia and Montenegro) against which the application of Bosnia and Herzegovina was brought and that therefore the application should have been dismissed in limine litis.

Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France) Request for Provisional Measures Order of 17 June 2003 I.C.J. Reports 2003, p. 102

Case Concerning Certain Criminal Proceedings in France

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On 9 December 2002, the Republic of the Congo filed an application instituting proceedings against France, in which it sought the annulment of certain investigation and prosecution measures taken by the French judicial authorities for crimes against humanity and torture. These investigation and prosecution measures were directed against several individuals having Congolese nationality and occupying high-ranking governmental posts such as the Minister of the Interior. The President of the Congo was summoned as a witness. The Congo contended that by "attributing to itself universal jurisdiction in criminal matters and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State for crimes allegedly committed by him in connection with the exercise of his powers for the maintenance of public order in his country, France violated the principle of sovereign equality of States". The Congo further submitted that, in issuing a warrant instructing police officers to examine the President of the Republic of the Congo as witness in the case, France violated the criminal immunity of a foreign Head of State. The Congo proposed to found the jurisdiction of the Court on the consent of the French Republic, pursuant to Article 38, paragraph 5, of the Rules. France consented to that proposal, which made it possible to enter the case in the Court’s List and to open the proceedings. The Congo’s Application was accompanied by a request for the indication of a provisional measure seeking an order for the immediate suspension of proceedings which were being conducted by the investigating judge of a French criminal Court. In its order of 17 June 2003 the Court recalled that the power to indicate provisional measures had the objective to preserve the respective rights of the parties pending a final decision in the case. Irreparable prejudice to rights which were the subject of dispute should be avoided by such measures. Provisional measures were only justified in case of urgency. Contrary to the arguments presented by the Congo, the Court did not qualify the ongoing French court proceedings as causing irreparable prejudice to the honour and reputation of the highest authorities of the Congo. In view of statements of the French representatives during the hearings, according to which France did not deny the immunities from civil and criminal jurisdiction of the Congolese Head of State, the Court concluded that with respect to the Congolese President there was no risk of irreparable prejudice. The Court further considered the existence of a risk of irreparable prejudice in relation to the alleged unilateral assumption of universal jurisdiction in criminal matters by France. It rejected this allegation after an inquiry into the different situations of each of the individuals concerned. In all cases, albeit for different reasons, the Court came to the conclusion that the

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Congo had not demonstrated the likelihood or even the possibility of any irreparable prejudice to the rights of the persons concerned. Accordingly the Court rejected the Congo’s request for indication of provisional measures. Judges Koroma and Vereshchetin appended a joint separate opinion, judge ad hoc de Cara a dissent.

Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America Judgment of 6 November 2003 I.C.J. Reports 2003, p. 161

On 2 November 1992, Iran instituted proceedings against the United States in respect of a dispute "arising out of the attack on and destruction of three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, by several warships of the United States Navy on 19 October 1987 and 18 April 1988, respectively". Iran contended that these acts constituted a fundamental breach of various provisions of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, in particular its Art. X, as well as of international law. As the basis for the Court’s jurisdiction, Art. XXI, para.2, of the 1955 Treaty was invoked. The United States raised a preliminary objection to the jurisdiction which was rejected by a Judgment of 12 December 1996 (cf. WCD III, p. 708). In its Counter-Memorial the United States included a counter-claim concerning Iran’s actions in the Gulf during 1987-88 involving mining and other attacks on U.S.-flag or U.S.-owned vessels. By an Order of 10 March 1998 the Court admitted the counter-claim (cf. WCD III, p. 709). The actions giving rise to the claim and the counter-claim occurred in the context of the Gulf crisis between Iran and Iraq during the so-called "Tanker-War". Between 1984 and 1988, a number of commercial vessels and warships of various nationalities, including neutral vessels, were attacked by aircraft, helicopters, missiles or warships, or struck by mines in the waters of the Persian Gulf. Naval forces of both belligerent parties were operating in the Gulf, but Iran denied responsibility for any actions other than incidents involving vessels refusing a proper request for stop and search. The United States attributed the responsibility for certain incidents

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to Iran, whereas Iran suggested that Iraq was responsible for them. The case before the Court related to two specific attacks on shipping, namely the hitting, on 16 October 1987, of the Kuwaiti tanker Sea Isle City, reflagged to the United States, near Kuwait harbour. The United States attributed this attack to Iran, and three days later, on 19 October 1987, it attacked two Iranian offshore oil production installations in the Reshadat ["Rostam"] complex. The second incident happened on 14 April 1988, when the warship USS Samuel B. Roberts was struck by a mine in international waters near Bahrain while returning from an escort mission; four days later the United States employed its naval forces to attack and destroy simultaneously the Nasr ["Sirri"] and Salman ["Sassan"] complexes. These attacks by United States forces on the Iranian oil platforms were claimed by Iran to constitute breaches of the 1955 Treaty for which Iran requests reparation. The United States in contrast invoked the right of self-defence in order to justify its reactions to the attacks on the Sea Isle City and the USS Samuel B. Roberts. The Court recalled first that the basis of jurisdiction is Art. XXI, para. 2, of the 1955 Treaty according to which any dispute which cannot satisfactorily be adjusted by diplomacy shall be submitted to the ICJ. In its Judgment of 12 December 1996 the Court had found that it had jurisdiction "to entertain the claims made by the Islamic Republic of Iran under Art. X, paragraph 1, of that Treaty" which guarantees the freedom of commerce and navigation between the territories of the Contracting Parties. With regard to the alleged breach of Art. X of the 1955 Treaty the United States relied on Art. XX, para. 1 d) of that Treaty which provides that: "The present Treaty shall not preclude the application of measures … d) necessary to fulfil the obligation of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests." Thus, as the Court had stated in its Judgment on the preliminary objections, Art. XX, para.1 d) afforded the Parties a possible defence on the merits. To uphold the claim the Court had therefore to be satisfied both that the actions of the United States infringed the freedom of commerce between the territories of the Parties guaranteed by Art. X, para.1, and that those actions were not justified under Art. XX, para. 1 d). The first question that the Court had to decide was therefore the order in which these questions should be examined. As it appeared to the Court that this case involved in particular questions of use of force and as the 1955 Treaty was invoked at a rather late stage in the overall context of the case, the Court considered it appropriate to examine first the application of Art. XX, para. 1 d), namely the justification of the acts of the United States as acts committed in self-defence. If this question would find a positive answer, there could not be a breach of Art. X, para. 1.

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The examination of Art. XX, para. 1 d) had strictly to refer to that provision of the Treaty which does not itself use the term self-defence. However, the provision that "measures necessary to protect the essential security interests" could justify a breach of the Treaty could not be understood in a way as to include use of force not permitted under international law. The provision of the Treaty had to be construed in consonance with international law, in particular Art. 31, para. 3 c), of the Vienna Convention on the Law of Treaties according to which the interpretation shall take account of "any relevant rules of international law applicable in the relations between the parties". Accordingly, the provisions of the UN Charter and of customary international law had to be taken into account in interpreting the 1955 Treaty. Accordingly, the Court examined both incidents concluding, however, that they did not amount to cases of self-defence according to Art. 51 UN Charter. With regard to the incident on the Sea Isle City, the Court was of the opinion that the United States had neither conclusively proven that there was an armed attack on the United States by Iran to which the destruction of the oil platforms could be considered as a necessary reaction, nor that the oil platforms constituted military targets. In this context the United States had to prove that the Sea Isle City was hit by a missile fired by Iran. There was, however, only one eye witness who only attested that the missile "came from the direction of Iran"; this testimony was furthermore given ten years after the event. In the view of the Court, this could not discharge the burden of proof of the United States as could also not other evidence offered. Also with regard to the second incident concerning the warship Samuel B. Roberts the Court considered the evidence produced by the United States only as "highly suggestive, but not conclusive", because the United States could not prove conclusively that the mine had been laid by Iran. The Court noted that mines were being laid at the time by both belligerents in the Iran-Iraq war, but that the discovery of moored mines in the same area, bearing serial numbers matching other Iranian mines, was not sufficient. The question whether the acts of the United States were necessary and proportionate as required under the 1955 Treaty and international law was also answered in the negative. In the case of the Sea Isle City the Court was not satisfied that the attacks on the oil platforms were necessary to respond to these incidents, and in the case of the Samuel B. Roberts the Court considered that the destruction of the oil platforms as response to the mining of a single US

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warship, which was severely damaged, but not sunk, and without loss of life, could not be regarded as a proportionate use of force in self-defence.. The Court came thus to the conclusion that Art. XX, para. 1 d), of the 1955 Treaty did not afford a justification for the destruction of the oil platforms by the United States which constituted recourse to armed force not qualifying, under international law, as acts of selfdefence. The Court then turned to the question of a violation of Art. X, para. 1, of the Treaty, namely whether the destruction of the oil platforms violated the guarantee of freedom of commerce and navigation between the parties. The Court recalled, first, that only commerce between the contracting parties, not also commerce with third states, is covered by Art. X, para. 1. It found that the freedom of commerce was not violated. With regard to the oil platforms destroyed in 1987 the relevant consideration referred to the fact that these oil platforms were not used for the production of oil at the relevant time because they were under repair following an Iraqi attack. Therefore, they did not fulfil any function related to the freedom of commerce. As to the oil platforms destroyed in 1988 a violation of the freedom of commerce was also not at stake for the reason that at the relevant time there was no commerce between the Contracting Parties due to an embargo imposed by a United States Executive Order of 29 October 1987. The objection of Iran that the embargo explicitly excluded Iranian products reaching the United States via third States did not change this conclusion because the question was not whether Iranian oil products reached the United States but whether there was commerce between the United States and Iran, which was not the case. The Court accordingly concluded that the Iranian claim concerning the breach of the Treaty as well as the claim for reparation could not be upheld. In the last step of the Judgment the Court dismissed also, by fifteen votes to one, the counterclaim of the United States. Iran had brought four objections to the Court’s jurisdiction and to the admissibility of the counter-claim which were all dismissed. As to the merits of the counter-claim the Court found again that the United States had not conclusively discharged its burden of proof because it should have shown that there was an actual impediment to commerce or navigation between the territories of the two Contracting Parties. The fact that navigation in the Persian Gulf was unsafe, because of the military actions in the Persian Gulf, was not sufficient. The counter-claim was presented in a generic sense without referring to specific incidents and could not, therefore, be upheld.

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The decision, although taken by a majority of 14:2 concerning the Iranian claim, and 15:1 concerning the United States counter-claim, was severely contested with regard to the procedure chosen by the Court, demonstrated by the fact that two declarations (Ranjeva and Koroma), eight separate votes (Higgins, Parra-Aranguren, Kooijmans, Buergenthal, Elaraby, Owada, Simma and ad hoc Judge Rigaux) and one dissenting opinion (Al-Khasawneh) were annexed to the Judgment. The most important criticism expressed in these opinions and declarations concerned the fact that the Court had at all examined Art. XX, para. 1 d), of the Treaty. This was considered as being ultra petita because this question was not submitted to the Court in the Application and therefore should only have been examined if a violation of Art. X, para.1 of the Treaty had been found, and that furthermore the findings on Art. XX, para.1 d), should not have been included in the dispositif of the Judgment. Furthermore, the judges appending separate votes criticised the fact that the decision on Art. XX, para. 1 d), and on Art. X of the 1955 Treaty were answered together in one article of the dispositif leaving thus no freedom to the judges to vote for or against only one of these questions. The only vote opposing the decision on the counter-claim was made by Judge Simma. He would have upheld the counter-claim for the reason that Iran was responsible for a significant portion of the actions impairing the freedom of commerce and navigation between the two countries; it was, according to Judge Simma, not necessary to determine the particular extent to which Iran was responsible for them. He was of the view that a principle of joint-andseveral responsibility can be developed from domestic legal systems as a general principle of law by which the dilemma in the present case could have been overcome.

Application for the Revision of the Judgment of 11 September 1992 in the case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El Salvador v. Honduras) Judgment of 18 December 2003 I.C.J. Reports 2003, p. 392

On 10 September 2002 El Salvador submitted a request to the Court for revision of the Judgment delivered on 11 September 1992 by the Chamber formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (cf. WCD II, p. 420). As according to Art. 61, para. 5, of the Statute applications for revision may

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be made only within ten years from the date of the Judgment, the application of El Salvador was made on the very last day before the lapse of that term. In its Application El Salvador requested the Court to form a Chamber to hear the case because in their Special Agreement of 24 May 1986 El Salvador and Honduras had agreed to submit the case to a Chamber according to Art. 26, para. 2, ICJ Statute. By an Order of 27 November 2002 (I.C.J. Reports 2002, p. 618) the Court formed the Chamber consisting of three members of the Court (President Guillaume, Judges Rezek and Buergenthal) and two ad hoc judges (Torres Bernárdez chosen by Honduras and Paolillo chosen by El Salvador). Ad hoc Judge Torres Bernárdez was the only judge who sat already in the Chamber in 1992. El Salvador’s application concerned the revision only of the sixth sector of the land boundary determined in the 1992 judgment. In this sector the course of the river Goascorán was of particular relevance for the determination of the boundary. Honduras had argued that in this sector reaching from Los Amates to the Gulf of Fonseca, the actual course of the river Goascorán formed the boundary. El Salvador was of the opinion that a former course of the river was decisive because the course of the river had changed due to an avulsion. In its judgment of 1992 the Chamber followed the argument of Honduras. In its Application for revision El Salvador argued that meanwhile it had discovered documents indicating that the Goascorán did in the past change its bed and that the change was abrupt, probably as a result of a cyclone in 1762. These documents constitute, according to El Salvador, "new facts" for purposes of Art. 61 of the Statute and are moreover decisive, because the conclusions of the 1992 Judgment were founded on the rejection of an avulsion which, in the Chamber’s view, had not been proved. In its decision the Chamber first recalled that each of the requirements set out in Art. 61 of the Statute have to be fulfilled in order to admit a request for revision, namely that it is based on new facts being of a decisive character and unknown when the judgment was given and that the ignorance of those facts was not due to negligence. Furthermore the request must be made within six months of the discovery of the new fact and within ten years after the delivery of the judgment to be reviewed. The Chamber then briefly recalled the considerations of the 1992 Chamber. The argument of El Salvador had been dismissed in that Judgment with a view to the conduct of El Salvador in particular during the negotiations in 1880 and 1884 so that the course of the river was irrelevant to the 1992 decision. Therefore, the Chamber concluded that whether or not there was an avulsion of the Goascorán and even if it were now proved and if its legal consequences were those inferred by El Salvador, this would not

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provide a basis for calling into question the 1992 decision on wholly different grounds. The facts asserted by El Salvador in this connection were not "new facts" in respect of the Judgment which it sought to revise. As a second "new fact" El Salvador relied on the discovery of a further copy of an important map, namely the "Carta Esferica" which existed in different versions, and a further copy of the report of the expedition of the "El Activo", supplementing the copies to which the 1992 Chamber had referred in its Judgment. These new facts thus concerned the evaluation of evidence which the Chamber had given in 1992 to the documents presented by Honduras. The Chamber examined whether the 1992 Chamber would have reached another decision if the new map or report had been at its disposal. It came to the conclusion that the two copies of the "Carta Esferica" and of the report of the expedition differ only as to certain details, such as for example the placing of titles, the legends and the handwriting. The relevant content is, however, identical so that the new facts produced by El Salvador could not overturn the conclusions arrived at by the Chamber in 1992, but moreover bear them out. El Salvador had further contended that the new facts necessitated consideration of other facts that the Chamber had weighed in 1992 and that are now affected by the new facts. The Chamber agreed with that view of El Salvador, recalled, however, that according to Art. 61, revision of a judgment can be opened only by "the discovery of some new fact of such a nature as to be a decisive factor". Since the "new facts" referred to by El Salvador were not decisive, the Chamber found by four votes to one that the Application was inadmissible. Ad hoc Judge Paolillo dissented because he was of the opinion that the 1992 decision would have been different if the new documents had already been produced. He regretted that the Chamber thus missed the opportunity to declare admissible, for the first time in the history of the Court, an application for revision which, according to his view, met all the conditions required by Art. 61 of the Statute.

Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)

On 9 January 2003 Mexico initiated proceedings against the United States on a dispute concerning alleged violations of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to 54 Mexican nationals who had been sentenced to

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death in certain states of the United States. As the basis of jurisdiction Mexico invoked the Optional Protocol to the Vienna Convention on Consular Relations to which both States are parties. According to Art. 1 of the Optional Protocol "disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice". Together with its application, Mexico filed a request for the indication of provisional measures in particular with regard to three of the convicted persons who were at risk of execution in the coming months, or possibly even weeks.

Provisional Measures Order of 5 February 2003 I.C.J. Reports 2003, p. 77

On 5 February 2003 the Court unanimously indicated to the United States of America that it shall take all measures necessary to prevent the execution of three Mexican nationals pending its final decision. After finding that it has prima facie jurisdiction under the Optional Protocol the Court examined the arguments of the Parties which mainly concerned the question whether the steps taken by the United States after the LaGrand case were sufficient as a remedy for violations of the Convention on Consular Relations. In the LaGrand case the Court had ruled that, where there had been a violation of the Vienna Convention in death penalty cases, the United States were to ensure that in any case there was a review and reconsideration of the decision. Although the United States had provided for such review Mexico argued that this review was only one granted "as a matter of grace and not of legal right" in the context of executive clemency and therefore could not represent a sufficient remedy. This question was, according to the Court, however, one belonging to the merits and could not, therefore, be addressed at this stage of the proceedings. The United States had further argued that the indication of provisional measures in this case would amount to "a sweeping prohibition on capital punishment for Mexican nationals in the United States" and would transform the Court into a "general criminal court of appeal". As in the LaGrand case the Court dismissed this argument because the issues brought before the Court in the present case did not concern "the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes".

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As to the question of urgency required for the indication of provisional measures, the Court dismissed the argument of the United States that no execution date had been scheduled with respect to any of the Mexican nationals concerned, including the three nationals referred to in particular by Mexico, and that therefore there was no urgency for the indication of provisional measures. The Court stated that a request for the indication of provisional measures should be "submitted in good time" according to Art. 73 of the Rules of Court so that the fact that no execution dates had been fixed was not per se a circumstance that could preclude the Court from indicating provisional measures. Since according to the information of the Court three of the Mexican nationals concerned were at a risk of execution in the coming months or even weeks which would cause irreparable damage to any rights which might subsequently be adjudged by the Court in the merits of the case, the Court concluded that the circumstances required the indication of provisional measures only with regard to those three Mexican nationals. Accordingly, the Court unanimously indicated as provisional measures that the United States of America "shall take all measures necessary to ensure that" the three Mexican nationals are not executed pending final judgment in the case and that "the Government of the United States shall inform the Court of all measures taken in implementation of this Order". In using the term "shall" and not the term "should" as in the LaGrand and the Breard cases the Court made it clear that the measures indicated have binding effect and have to be complied with by the United States.

Judgment of 31 March 2004 I.C.J. Reports 2004, p. 12

Ruling on the merits of the case, the Court first addressed the question of the Mexicans’ nationality. Concluding that the United States had not proved the claim that some of them were also United States nationals, the Court found that the United States did have obligations to provide consular information under Art. 36 (1) (b) Vienna Convention towards Mexican nationals and that the United States had violated its obligation to provide consular notification in all of the cases save one. In 49 of the cases the United States also violated Art. 36 (1) (a) Vienna Convention, because it had to enable Mexican consular officers to communicate with, have access to and visit their nationals. Furthermore, in 34 cases the Court found that the United States violated its obligation to enable Mexican consular officers to arrange for legal representation of their nationals under Art. 36 (1) (c) Vienna Convention.

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The Court further addressed Mexico’s submission that Art. 36 (2) Vienna Convention was violated by failing to provide "meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1)". With reference to its judgment in the LaGrand case the Court found a violation of that provision in three cases, whereby the possibility of judicial re-examination was still open in 49 of the cases. In respect of the legal consequences and remedies to be considered, the Court again followed its judgment in the LaGrand case and found that adequate reparation for violations of Art. 36 should be provided by review and reconsideration of the convictions and sentences of the Mexican nationals by United States courts. The choice of means for review and reconsideration were left to the United States. It had to be carried out by taking account of the violation of rights under the Vienna Convention. The Court found that the clemency process, as practised within the United States criminal justice system, was not sufficient in itself to serve that purpose and that it is the judicial process that is suited for this task. Finally, the Court found no evidence of a regular and continuing pattern of breaches by the United States of Art. 36 Vienna Convention. As to Mexico’s request for guarantees and assurances of non-repetition the Court recognized the United States’ efforts to encourage implementation of its obligations under the Vienna Convention and considered that that commitment by the United States met Mexico’s request. President Shi and Vice-President Ranjeva appended declarations, Judges Vereshchetin, ParraAranguren and Tomka and Judge ad hoc Sepúlveda entered separate opinions.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion of 9 July 2004 I.C.J. Reports 2004, p. 136

At its Emergency Special Session on 8 December 2003, the United Nations General Assembly decided to request the International Court of Justice to urgently render an Advisory Opinion on the following question: “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 rules and

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principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?” The request was submitted to the Court on 10 December 2003. By an Order of 30 January 2004, the Court decided in accordance with Article 105, paragraph 4, of the Rules of the Court, to hold public hearings during which oral statements and comments might be presented to it by the United Nations and its member States, regardless of whether or not they had submitted written statements. Furthermore, Palestine was invited to take part in the hearings. By a reasoned Order also of 30 January 2004 the Court decided on its composition in the case which had been challenged with regard to one of its members, namely Judge Elaraby. The Court decided that the matters brought to its attention by the Government of Israel in a letter of 31 December 2003, and in a confidential letter of 15 January 2004 addressed to the President pursuant to Article 34, paragraph 2, of the Rules, were not such as to preclude Judge Elaraby from sitting in the case (I.C.J. Reports 2004, p. 3). The Court examined the question of its jurisdiction in a two-tiered approach, considering first whether it had jurisdiction to give the opinion requested and, if so, addressing in the second step whether there was any reason why it should decline to exercise any such jurisdiction. In the view of the Court, the General Assembly had the competence to seek the advisory opinion. Israel had argued that the General Assembly acted ultra vires under Article 12, paragraph 1, of the Charter given the active engagement of the Security Council with the situation in the Middle East, including the Palestinian question. The Court held that the Security Council failed to act as contemplated in resolution 377 A (V). Furthermore, the Court stated that neither the abstract nature nor the political aspects of the question deprived the Court of jurisdiction. The Court emphasized that although the Statute gives the Court a discretionary power to decline to render an advisory opinion even if the conditions of jurisdiction are met, the present Court had never declined to respond to a request for an advisory opinion. The Court rejected the view that the specific circumstances of the case would qualify as "compelling reasons" that should lead the Court to refuse its opinion. The Court observed that the lack of consent to the Court’s contentious jurisdiction by States has no bearing on the Court’s jurisdiction to give an advisory opinion. With regard to the argument that the opinion could undermine the scheme of the "roadmap", the Court held that it was not clear what influence the Court’s opinion could have on those negotiations and that participants in the present proceedings had expressed differing views in this regard. Finally, the Court found that

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it had before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. The Court also rejected the arguments put forward in the written statements. Some States had argued that the General Assembly did not need an opinion of the Court because it had already declared the construction of the wall to be illegal and had already determined the legal consequences. The Court held that it was not entitled to substitute its assessment of the usefulness of the opinion request for that of the organ that seeks such opinion. Israel had finally invoked the principles of "good faith" and “clean hands", arguing that Palestine, given its responsibility for acts of violence against Israel and its population, which the wall is aimed at addressing, cannot seek from the Court a remedy for a situation resulting from its own wrongdoing. The Court did not consider this argument to be pertinent. It stressed once again that the opinion was to be given to the General Assembly and not to a specific State or entity. Considering the question put forward by the General Assembly, the Court started with a brief analysis of the status of the territory concerned and described the works already constructed or in course of construction in that territory. Turning to the legal aspects, the Court determined the rules and principles applicable to the facts of the case. The Court began by citing, with reference to Article 2, paragraph 4, of the United Nations Charter and to General Assembly resolution 2625 (XXV), the principles of the prohibition of the threat or use of force and the illegality of any territorial acquisition by such means, as reflected in customary international law. It further cited the principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV). As regards international humanitarian law, the Court referred to the provisions of the Hague Regulation of 1907, which had become part of customary law, as well as the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, applicable in those Palestinian territories which before the armed conflict of 1967 lay to the east of the 1949 Armistice demarcation line (or "Green Line") and were occupied by Israel during that conflict. The Court further noted that the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child are applicable in the Occupied Palestinian Territory. As already in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court held that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of explicit provisions for derogation. Consequently, the Court took into consideration human rights law and, as lex specialis, international humanitarian law. In

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respect to the scope of application of the International Covenant of Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the Rights of the Child, the Court considered that these instruments were applicable to acts done by a State in the exercise of its jurisdiction outside its own territory. The Court considered whether the construction of the wall had violated the above-mentioned rules and principles. It first observed that the route of the wall as fixed by the Israeli Government included within the "Closed Area" (between the wall and the "Green Line") some 80 percent of the settlers living in the Occupied Palestinian Territory. Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a "flagrant violation" of the Fourth Geneva Convention, the Court found that those settlements had been established in breach of international law. It further considered certain fears expressed to it that the route of the wall would prejudge the future frontier between Israel and Palestine; it considered that the construction of the wall and its associated régime created a ‘fait accompli’ on the ground that could well become permanent, in which case the construction of the wall would be tantamount to de facto annexation. The Court then considered the information furnished to it regarding the impact of the construction of the wall on the daily life of the inhabitants of the Occupied Palestinian Territory. It found that the construction of the wall and its associated régime were contrary to the relevant provisions of the Hague Regulations of 1907 and of the Fourth Geneva Convention and that they impede the liberty of movement of the inhabitants of the territory as guaranteed by the International Covenant on Civil and Political Rights. Furthermore, the Court held that they also impeded the exercise by the persons concerned of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child. Lastly, the Court found that this construction and its associated régime, coupled with the establishment of settlements, were tending to alter the demographic composition of the Occupied Palestinian Territory and thereby contravened the Fourth Geneva Convention and the relevant Security Council resolutions. The Court observed that certain humanitarian law and human rights instruments include qualifying clauses or provisions for derogation which may be invoked by States parties, inter alia where military exigencies or the needs of national security or public order so require. It stated that it is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives and, holding that none of such clauses were

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applicable, the Court found that the construction of the wall constituted breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments. Having found that the construction of the wall was in violation of various international obligations, the Court considered that Israel could not rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall. Considering that Article 51 of the Charter recognizes an inherent right of self-defence in the case of armed attack by one State against another State, the Court noted that Israel did not claim that the attacks against it are imputable to a foreign State. Moreover, Israel itself exercised control in the Occupied Palestinian Territory. The Court concluded that the situation was different from the one contemplated by Security Council resolutions 1368 (2001) and 1373 (2001). As a result of the violations of international obligations, the responsibility of Israel was engaged under international law. Taking into account the particular meaning of obligations erga omnes, the Court drew a distinction between the legal consequences of these violations for Israel and those for other States. The Court held that Israel is under the obligation to respect the right of the Palestinian people to self-determination and its obligations under humanitarian law and human rights law. It must ensure freedom of access to the Holy Places that came under its control following the 1967 War. Furthermore, the Court determined that Israel must put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory and must accordingly cease forthwith the works of construction of the wall, dismantle forthwith those parts of that structure situated within the Occupied Palestinian Territory and forthwith repeal or render ineffective all legislative and regulatory acts adopted with a view to construction of the wall and establishment of its associated régime, except in so far as such acts may continue to be relevant for compliance by Israel with its obligations in regard to reparation. Israel must further make reparation for all damage suffered by all natural or legal persons affected by the wall’s construction and accordingly, return the land and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. Furthermore the Court considered that Israel has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction.

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As regards the legal consequences for other States, the Court found that 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 assistance in maintaining the situation created by such construction. The Court further held that it is for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, in the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all States parties to the Fourth Geneva Convention are under an obligation, while respecting the Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. Finally, the Court said that 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 its associated régime, taking due account of the present Advisory Opinion. The Court concluded by stating that the construction of the wall must be placed in a more general context. In this regard, the Court noted that Israel and Palestine are under an obligation scrupulously to observe the rules of international humanitarian law. In the Court’s view, the tragic situation in the region can be brought to an end only through implementation in good faith of all relevant Security Council resolutions. Judges Koroma, Higgins, Kooijmans, Al-Khasawneh, Elaraby and Owada appended separate opinions to the Advisory Opinion; Judge Buergenthal appended a declaration.

Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium; Serbia and Montenegro v. Canada; Serbia and Montenegro v. France; Serbia and Montenegro v. Germany; Serbia and Montenegro v. Italy; Serbia and Montenegro v. Netherlands; Serbia and Montenegro v. Portugal; Serbia and Montenegro v. United Kingdom) Preliminary Objections Judgment of 15 December 2004 I.C.J. Reports 2004, p. 279

On 29 April 1999 the Government of the Federal Republic of Yugoslavia (with effect from 4 February 2003, "Serbia and Montenegro") filed in the Registry of the Court an Application instituting proceedings against 10 States, in respect of a dispute concerning acts allegedly committed by these States in Kosovo during their NATO Mission in the period from 24

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March until 10 June 1999. Immediately after filing its Application, the Federal Republic of Yugoslavia also submitted a request for the indication of provisional measures pursuant to Article 73 of the Rules of Court. The Government of the Federal Republic of Yugoslavia contended that the Kingdom of Belgium, Canada, the French Republic, the Federal Republic of Germany, the Italian Republic, the Kingdom of the Netherlands, the Portuguese Republic, the Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland and the United States of America violated their international obligations banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, the obligation not to violate the sovereignty of another State, the obligation to protect the civilian population and civilian objects in wartime, the obligation to protect the environment, the obligation relating to free navigation on international rivers, the obligation regarding fundamental human rights and freedoms, the obligation not to use prohibited weapons and the obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group. In its Order of 2 June 1999, the Court rejected the requests for the indication of provisional measures. By Orders of the same date, the Court also decided to remove from the List the cases against Spain and the United States of America on the ground that the Court manifestly lacked jurisdiction. (Cf. WCD III, p. 720 ff.) With respect to the remaining 8 cases, the Court unanimously decided by its Judgment of 15 December 2004 that it lacked jurisdiction. The Court first considered the contention for rejecting the Application in limine litis presented in different forms by the eight respondent States, that as a result of the changed attitude of the Applicant to the question of the Court’s jurisdiction, the case could be dismissed without enquiring further into matters of jurisdiction. In the original Applications, Serbia and Montenegro invoked as the title of jurisdiction in each case Article IX of the Genocide Convention and its own acceptance of the jurisdiction of the Court under the optional clause of Article 36, paragraph 2, of the Statute. The Applications therefore asserted, at least by implication, that the Court was open to Serbia and Montenegro under Article 35, paragraph 1, of the Statute. This was subsequently expressly stated in the Memorial filed by Serbia and Montenegro. However, in its observations on the preliminary objections of each of the respondent States, Serbia and Montenegro claimed that the admission of the Federal Republic of Yugoslavia as a new member of the United Nations on 1 November 2000 constituted a new fact. According to its own assertions, the Federal Republic

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of Yugoslavia could not have been a party to the Statute of the Court by way of UN membership at the time of the Application. In addition, as regards the question of jurisdiction of the Court under the Genocide Convention, Serbia and Montenegro in its Observations drew attention to its own accession to that Convention in March 2001, stating that the Federal Republic of Yugoslavia did not continue the personality and treaty membership of the former Yugoslavia. Dealing with the legal consequences of this specific situation, the Court observed that a removal of the case could be the legal effect of a finding of the Court, but not of a discontinuance of the proceedings instituted by the Applicant State. The Court continued that regarding the facts given the Court could not put an end to the proceedings on its own motion. Furthermore, the Court stated that in its view a distinction had to be made between a question of jurisdiction that related to the consent of a party and the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent, but a matter of law. Finally, the Court pointed out that its Judgment of 3 February 2003 in the case concerning the Application for Revision of the Judgment of 11 July 1996 in the Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, did not have the character of res iudicata for the present case. No final and definitive conclusion was drawn by the Court concerning the status of the Federal Republic of Yugoslavia vis-à-vis or within the United Nations during the period 1992-2000. Consequently, the Court did not reject the Application in limine litis. Turning to the question of jurisdiction, the Court referred once again to its freedom to select the ground upon which it bases its judgment, applied in several cases before. However, in opposition to those instances, an objection had been made regarding the right of the Applicant to have access to the Court in the present case. The Court held that it can exercise its judicial function only in respect to those States which have access to it under article 35 of the Statute. The Court began with the question whether the Applicant met the conditions laid down in Articles 34 and 35, paragraph 1, of the Statute. In this respect, the Court noted that it is common ground between the Parties that Serbia and Montenegro had not claimed to have become a party to the Statute on any other basis than by membership in the United Nations. After recapitulating the sequence of events relating to the legal position of Serbia and Montenegro vis-à-vis the United Nations, the Court drew the conclusion that the amorphous status of Serbia and Montenegro came to an end with the admission of the Federal Republic of Yugoslavia as a new member in the United Nations on 1

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November 2000. Consequently, the Court found that Serbia and Montenegro was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application. The Court then considered whether it could be open to Serbia and Montenegro under paragraph 2 of Article 35 of the Statute. A number of Respondents had contended in their pleadings that the reference to treaties in force in Article 35, paragraph 2, of the Statute related only to treaties in force when the Statute of the Court entered into force, i.e. on 24 October 1945. In respect of the Order of 8 April 1993 in the Genocide Convention case, the Respondents had pointed out that that was a provisional assessment, not conclusive of the matter, and considered that there were persuasive reasons why the Court should revisit the provisional approach it adopted to the interpretation of this clause in the Genocide Convention case. The Court noted that the passage from the 1993 Order in the Genocide Convention case was addressed to the situation in which the proceedings were instituted against a State whose membership in the United Nations and status as a party to the Statute was unclear. It observed that the Order of 8 April 1993 was made on the basis of an examination of the relevant law and facts in the context of incidental proceedings on a request for the indication of provisional measures, and concluded that it would therefore now be appropriate for the Court to make a definitive finding on the question whether Article 35, paragraph 2, affords access to the Court in the present case, and for that purpose, to examine further the question of its applicability and interpretation. The Court pointed out that the words "treaties in force" in Article 35, paragraph 2, do not, in their natural and ordinary meaning, indicate at what date the treaties contemplated are to be in force, and may thus lend themselves to different interpretations. They may be interpreted as referring either to treaties which were in force at the time that the Statute itself came into force, or to those which were in force on the date of the institution of proceedings in a case in which such treaties are invoked. The Court observed that 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. It would have been inconsistent with the main thrust of the text to make it possible in the future for States not parties to the Statute to obtain access to the Court simply by the conclusion between them of a special treaty, multilateral or bilateral, containing a provision to that effect. The Court concluded that Article 35, paragraph 2, of the

900

Legality of Use of Force

Statute does not provide Serbia and Montenegro with a basis to have access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute. The Court did not consider it necessary to decide whether Serbia and Montenegro was or was not a party to the Genocide Convention on 29 April 1999 when the current proceedings were instituted. Having found that Serbia and Montenegro did not, at the time of the institution of the present proceedings, have access to the Court under either paragraph 1 or paragraph 2 of Article 35 of the Statute, the Court stated that it was unnecessary for it to consider the other preliminary objections filed by the Respondents to its jurisdiction. Vice-President Ranjeva and Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal and Elaraby appended a joint declaration to the Judgment of the Court as well as separate opinions which primarily express the possible consequences of this decision on other, still pending procedures involving Serbia and Montenegro (Yugoslavia) as a party. The Court could have come to the same result without deciding on the status of Serbia and Montenegro (Yugoslavia) within the United Nations before 1 November 2000, the date of admission of Yugoslavia to the United Nations, avoiding thus intricate problems concerning its judgment on jurisdiction in the Genocide cases.

Case concerning Certain Property (Liechtenstein v. Germany) Preliminary Objections Judgment of 10 February 2005 I.C.J. Reports 2005, p. 6

On 1 June 2001, the Principality of Liechtenstein filed an Application instituting proceedings against the Federal Republic of Germany relating to a dispute concerning "decisions of Germany, in and after 1998, to treat certain property of Liechtenstein nationals as German assets having been ‘seized for the purposes of reparation or restitution, or as a result of the state of war’ - i.e., as a consequence of World War II -, without ensuring any compensation for the loss of that property to its owners, and to the detriment of Liechtenstein itself". The case centered on a painting by the seventeenth century Dutch artist Pieter van Laer. This painting had been the property of the family of the Reigning Prince of Liechtenstein since the

Certain Property

901

eighteenth century. During the Second World War, Czechoslovakia was an allied country and a belligerent in the war against Germany. In 1945, it adopted a series of decrees (the Beneš Decrees), among them one under which private property belonging to the "German people" irrespective of their nationality was confiscated and according to which also certain property owned by Liechtenstein nationals, was confiscated. The same year, Czechoslovakia confiscated the above mentioned Pieter van Laer painting, owned by Prince Franz Josef II of Liechtenstein at that date. Following earlier allied enactments concerning a reparations régime in general and German external assets and other property seized in connection with the Second World War in particular, a special régime dealing with the latter subject was created by the Convention on the Settlement of Matters Arising out of the War and the Occupation, signed by the United States of America, the United Kingdom, France and the Federal Republic of Germany, at Bonn on 26 May 1952. A final settlement was brought about through the conclusion in 1990 of the Treaty on the Final Settlement with respect to Germany, signed at Moscow on 12 September 1990 and entered into force on 15 March 1991. Whereas through an Exchange of Notes the Settlement Convention itself was terminated, including the provision relating to compensation by Germany, it was agreed that the rule that barred the jurisdiction of German Courts with respect to the confiscations remained in force. In 1991, the painting by Pieter van Laer was lent by a museum in Brno (Czechoslovakia) to a museum in Cologne (Germany) for inclusion in an exhibition. Prince Hans-Adam II of Liechtenstein filed a lawsuit in his personal capacity in the German courts to have the painting returned to him as his property. His claim was dismissed at all instances on the basis that, under Article 3, paragraph 3, of Chapter Six of the Settlement Convention, "No claim or action shall be admissible" regarding measures taken against German external assets in the aftermath of the Second World War. A claim relating to the decisions of the German courts brought by Prince Hans-Adam II of Liechtenstein before the European Court of Human Rights was dismissed in July 2001. In order to found the jurisdiction of the International Court of Justice, Liechtenstein relied on Article 1 of the European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which entered into force between Liechtenstein and Germany on 18 February 1980. Germany raised six preliminary objections to the jurisdiction of the Court and the admissibility of the Application. In accordance with Article 79, paragraph 5, of the Rules of the Court, the proceedings on the merits were suspended.

902

Certain Property

In its first preliminary objection, Germany had argued that there was no dispute between the Parties. Liechtenstein had based its claims on an alleged "change of position" by Germany in the 1990s as to the need to apply the Settlement Convention to that property, whilst Germany contended that such a change had never occurred. Germany maintained that a distinction had to be made between the issue of the lawfulness of the Czechoslovak expropriations and that of the jurisdiction of the German courts regarding this matter. Germany contended that it had never accepted the validity of the relevant Czechoslovak measures against Liechtenstein property and that German courts had always held that they are barred by the Settlement Convention from adjudicating on the lawfulness of confiscation measures. With respect to this objection, the Court recalled that according to its own jurisprudence and that of 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. For the purposes of verifying the existence of a legal dispute, the Court had to determine whether the claim of one party was positively opposed by the other. The Court held that complaints of fact and law formulated by Liechtenstein against Germany were denied by the latter, as evidenced inter alia by the bilateral consultations between the Parties and therefore, that a legal dispute had arisen. Turning to the determination of the subject-matter of the dispute, the Court found that the dispute was whether, by applying the Settlement Convention to Liechtenstein property that had been confiscated in Czechoslovakia under the Beneš Decrees in 1945, Germany was in breach of the international obligations it owed to Liechtenstein and, if so, what was Germany’s international responsibility. The Court then examined Germany’s second preliminary objection that Liechtenstein’s Application should be rejected on the ground that the Court lacks jurisdiction ratione temporis to decide the present dispute. According to Art. 27, paragraph 1(a), of the European Convention for the Peaceful Settlement of Disputes the jurisdiction of the Court does not apply to "disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute". Germany was of the opinion that the dispute related to facts prior to 18 February 1980, the date when the Convention entered into force between the Parties. Both Parties had referred to temporal jurisdiction limitations dealt with in the Phosphates in Morocco case, the Electricity Company in Sofia and Bulgaria case and the Right of Passage case. Germany asserted that the claim put forward by Liechtenstein related to facts or situations prior to the date when the European Convention for the Peaceful Settlement of Disputes entered into force between Germany and Liechtenstein. Liechtenstein

Certain Property

903

contended that until the decisions of the German courts in the Pieter van Laer Painting case, it was understood between Germany and Liechtenstein that Liechtenstein property confiscated pursuant to the Beneš Decrees could not be deemed to have been covered by the Settlement Convention because of Liechtenstein’s neutrality. German courts would therefore not be barred by that Convention from passing on the lawfulness of these confiscations. In Liechtenstein’s view, the decisions of the German courts in the 1990s with regard to the painting made clear that Germany no longer adhered to that shared view, and thus amounted to a change of position. The Court noted that its previous jurisprudence on temporal limitations was of relevance in the case at hand. In the Court’s view, the present dispute could only relate to the events that transpired in the 1990s if, as argued by Liechtenstein, in this period Germany either departed from a previous common position that the Settlement Convention did not apply to Liechtenstein property, or if German courts, by applying their earlier case law under the Settlement Convention for the first time to Liechtenstein property, applied that Convention "to a new situation" after the critical date. With regard to the first alternative, the Court found that it had no basis for concluding that prior to the decisions of the German courts in the Pieter van Laer Painting case, there existed a common understanding or agreement between Liechtenstein and Germany that the Settlement Convention did not apply to the Liechtenstein property seized abroad as "German external assets" for the purpose of reparation or as a result of the war. The issue whether or not the Settlement Convention applied to Liechtenstein property had not previously arisen before German courts, nor had it been dealt with prior thereto in intergovernmental talks between Germany and Liechtenstein. The Court observed that German courts had 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. The Court found that this case, like previous ones on the confiscation of German external assets, was inextricably linked to the Settlement Convention. It further noted that the decisions of the German courts in the Pieter van Laer Painting case could not be separated from the Settlement Convention and the Beneš Decrees, and that these decisions could consequently not be considered as the source or real cause of the dispute between Liechtenstein and Germany. The Court concluded therefore that, while the decisions of the German courts triggered the dispute between Liechtenstein and Germany, the source or real cause of the dispute had to be found in the Settlement Convention and the Beneš Decrees. In light of the

904

Certain Property

provisions of the European Convention for the Peaceful Settlement of Disputes, Germany’s second preliminary objection had therefore to be upheld. Having dismissed the first preliminary objection of Germany, but upheld its second, the Court found that it was not required to consider Germany’s other objections and that it could not rule on Liechtenstein’s claims on the merits.

Judges Kooijmans, Elaraby and Owada appended dissenting opinions to the Judgment of the Court, Judge ad hoc Fleischhauer appended a declaration and Judge ad hoc Sir Franklin Berman appended a dissenting opinion to the Judgment of the Court.

Case Concerning the Frontier Dispute (Benin/Niger) Judgment of 12 July 2005 I.C.J. Reports 2005, p. 90

On 3 May 2002 the Republic of Benin (hereinafter "Benin") and the Republic of Niger (hereinafter "Niger") transmitted a Special Agreement to the Court whereby the governments of the two States agreed to submit to a Chamber of the Court a dispute concerning "the definitive delimitation of the whole boundary between them". According to Article 2 of the Special Agreement, the Court was requested to determine the course of the boundary between the Republic of Benin and the Republic of Niger in the River Niger sector; to specify which State owns each of the islands in the said river, and in particular Lété Island, and to determine the course of the boundary between the two States in the River Mekrou sector. By an Order of 27 November 2002 the Court constituted a Chamber to deal with the case, composed of President Guillaume and Judges Ranjeva and Kooijmans together with the judges ad hoc Bedjaoui and Bennouna. After the resignation of President Guillaume with effect from February 2005 he was replaced by Judge Abraham who was elected to fill his seat, Judge Ranjeva as Vice-President of the Court becoming President of the Chamber. The frontier dispute between the Parties is set within a historical context marked by the accession to independence of the territories that were formerly part of French West Africa ("Afrique occidentale française", hereinafter "AOF"). Benin, which is independent since 1 August 1960, corresponds to the former colony of Dahomey, and Niger, which is

Frontier Dispute

905

independent since 3 August 1960, corresponds to a territory which underwent various administrative transformations during the colonial period. The Chamber held that it follows from the wording of the Special Agreement and from the arguments of the Parties that they are in agreement on the relevance of the principle of uti possidetis juris for the purposes of determining their common border. It had accordingly to seek to determine the boundary that was inherited from the French administration. The Parties agreed that the dates to be taken into account for this purpose are those of their respective independence. Both Parties acknowledged that, in accordance with the principle of uti possidetis juris, the course of the frontier and the attribution of islands in the River Niger to either one of them must be determined in the light of French colonial law, known as "droit d’outre-mer". The Parties also agreed on the identification of the relevant rules of that law, but did not share the same interpretation thereof. The Chamber began by determining the course of the boundary in the sector of the River Niger and then went on to specify to which Party each of the islands in the river belongs. According to the principle of uti possidetis it first examined whether any one of the Parties could rely on a legal title; only in the absence of legal title would it be required to decide on the basis of effectivités. The Chamber considered the various regulative or administrative acts invoked by the Parties and came to the conclusion that neither of the Parties had succeeded in providing evidence of title on the basis of regulative or administrative acts during the colonial period. The Chamber then turned to consider whether the evidence furnished by the Parties with respect to effectivités could provide the basis for it to determine the course of the frontier in the sector of the River Niger and to which of the two States each of the islands in the river belongs. The Chamber first analysed the various activities prior to 1954, presented as effectivités by the Parties. The Chamber then turned to the effectivités in the period from 1954 until the critical date in 1960. On the basis of the evidence before it, the Chamber found that, from 1914 to 1954, the main navigable channel of the River Niger was considered by both sides to be the boundary. As a result, administrative authority was exercised by Niger on the islands to the left (the eastern side) and by Dahomey on the islands to the right of that line. The Chamber therefore concluded that, in this sector of the river, the boundary was regarded as passing to the left of these three islands. The Chamber held that the boundary between Benin and Niger followed the main navigable channel of the River Niger as it existed at the dates of independence. Consequently, Benin had

906

Frontier Dispute

title to the islands situated between the boundary thus defined and the right bank of the river and Niger has title to the islands between that boundary and the left bank of the river. The Chamber went on to specify that, in the sector of the three islands opposite Gaya, the boundary is constituted by the line of deepest soundings of the left navigable channel. However, in the vicinity of the last of these islands, Kata Goungou, the boundary deviates from that line and passes to the left of that island. With this exception, the boundary between the Parties therefore follows the line of deepest soundings of the main navigable channel of the River Niger. The Chamber proceeded to determine to which of the Parties each of the islands in the River Niger belongs, following the course of the river downstream from its confluence with the Mekrou to the frontier with Nigeria. The judgment lists all the islands in the relevant sector of the River Niger, indicating to which Party they belong in accordance with the Chamber’s findings. The Chamber finally noted that it had jurisdiction to comply with Niger’s request to determine also the frontier on the two bridges between Gaya (Niger) and Malanville (Benin). The Chamber concluded that the boundary on the bridges between Gaya and Malanville follows the course of the boundary in the river. The Chamber then determined the course of the boundary between the two States in the River Mekrou sector. The Chamber took the position that at the critical date of independence, it was the course of the Mekrou which, in the view of all the competent authorities of the colonial administration, constituted the boundary between the colonies of Dahomey and Niger. However, the Chamber emphasized that the uti possidetis juris principle requires not only that reliance be placed on existing legal titles, but also that account be taken of the manner in which those titles were interpreted and applied by the competent public authorities of the colonial Power, in particular in the exercise of their law-making power. The Chamber concluded from all of the foregoing that, at least from 1927 onwards, the competent administrative authorities regarded the course of the Mekrou as the intercolonial boundary separating Dahomey from Niger. In these circumstances, the Chamber found it unnecessary to look for any effectivités in order to apply the uti possidetis principle. Lastly, the Chamber determined the exact location in the River Mekrou of the boundary between Benin and Niger. In the present case, the Chamber observed that the Parties did not provide the Chamber with any documents that would enable the exact course of the thalweg of the Mekrou to be

Frontier Dispute

907

identified. The Chamber noted that in all likelihood there is a negligible difference between the course of the thalweg and the course of the median line of the River Mekrou. The Chamber finally held that, in the sector of the River Mekrou, the boundary between Benin and Niger is constituted by the median line of that river. Judge ad hoc Bennouna appended a dissenting opinion to the Judgment of the Chamber.

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)

On 23 June 1999, the Democratic Republic of the Congo (hereinafter "DRC") filed an Application instituting proceedings against the Republic of Uganda (hereinafter "Uganda") in respect of a dispute concerning "acts of armed aggression perpetrated by Uganda on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity". In order to found the jurisdiction of the Court, the Application relied on the declarations made by the two Parties accepting the Court’s compulsory jurisdiction under Article 36, paragraph 2, of the Statute of the Court. By an Order dated 1 July 2000, the Court, after hearing the Parties, indicated certain provisional measures (cf. WCD III, p. 728).

Counter-Claims Order of 29 November 2001 I.C.J. Reports 2001, p. 660

In its application, the Congo had requested the Court to adjudge and declare that Uganda had violated rules of conventional and customary international law by way of military and paramilitary actions against the Congo, illegal exploitation of Congolese resources and acts of oppression against Congolese nationals. The Congo, by its application, sought the immediate cessation of any internationally wrongful act, reparation for damage and guarantees for the future. Uganda, on the other side, answered by submitting three counter-claims alleging firstly aggressive acts against it by the DRC, secondly attacks on Ugandan diplomatic premises and

908

Armed Activities on the Territory of the Congo (Congo v. Uganda)

personnel in Kinshasa and on Ugandan nationals for which the DRC was alleged to be responsible and thirdly violations by the DRC of the Lusaka Agreement. As to the reparations, Uganda asked this issue to be reserved for a subsequent stage of the proceedings. In its Order the Court noted that for Uganda’s three counter-claims to be admissible it had to consider whether they constituted counter-claims as such and, if so, whether they fulfilled the formality and the direct connection requirement of Art. 80 of the Rules of Court, as contested by the Congo. In its Order of 29 November 2001, the Court found that, since Uganda sought not only the dismissal of the claims but also an additional ruling establishing the Congo’s responsibility and awarding reparations on that account, Uganda’s claims were to be qualified as counterclaims. As to the Congo’s argument that the Ugandan claims did not satisfy the formal conditions laid down in Article 80, para. 2, of the Rules of Court, the Court admitted their lack of clarity but declared that they still fulfilled the requirements of Article 80, para. 2 and could not be held inadmissible on that basis. Turning to the direct connection requirement under Art. 80, para.1, the Court partly dismissed the Congo’s submissions by unanimously finding that there was a direct connection between Uganda’s first counter-claim and the subject matter of the Congo’s main claims; it also found by fifteen votes to one that such a connection existed with regard to the second counter-claim. The Court reasoned that these claims of the Parties related to facts of the same nature and formed part of the same factual complex. The Parties were moreover pursuing the same legal aims, with each of them seeking to establish the responsibility of the other on the basis of the same principles of international law. The Court accordingly concluded that these two counterclaims were admissible. By contrast, the Court considered that Uganda’s third counter-claim – the violation by the Congo of the Lusaka Agreement – focused on facts of a different nature which did not form part of the same factual complex since it concerned questions relating to methods of solving the conflict in the region and not Uganda’s responsibility during that conflict as claimed by the Congo. The Court concluded that the Parties were not pursuing the same legal aims, since each of them was seeking to establish the responsibility of the other based on the violation of different rules. Thus the Court found Uganda’s third counter-claim not to be directly connected with the subject matter of the Congo’s claims and therefore inadmissible.

Armed Activities on the Territory of the Congo (Congo v. Uganda)

909

With regard to its findings, the Court asked the Congo to file a Reply and Uganda a Rejoinder, addressing the claims of both Parties within a fixed period of time. Additionally the Court, in order to ensure strict equality between the Parties, reserved the right of the Congo to present its views in writing a second time on the Ugandan counter-claims, in an additional pleading to be the subject of a subsequent Order.

Judgment of 19 December 2005 I.C. J. Reports 2005, p. 168

The Court started with the observation that the instability in the DRC had had negative security implications for Uganda and some other neighbouring States, resulting from the complex and tragic situation which had long prevailed in the Great Lakes region and leading inter alia to the Agreement for a Ceasefire in the DRC signed in Lusaka on 10 July 1999 (hereinafter "the Lusaka Agreement"). In its first submission, the DRC requested the Court to adjudge that the Republic of Uganda, by engaging in military and paramilitary activities against the DRC, had violated the principle of non-use of force in international relations, including the prohibition of aggression. Uganda maintained that from May 1997 until 11 September 1998 it was present in the DRC with the latter’s consent. It stated that the DRC’s consent to the presence of Ugandan forces was renewed in July 1999 by virtue of the terms of the Lusaka Agreement and extended thereafter. In the intervening period of 11 September 1998 to 10 July 1999, the military actions were legitimate on the basis of the right to self-defence. The Court found that it was clear that in the period preceeding August 1998 the DRC did not object to Uganda’s military presence and activities in its eastern border area. The Court observed that when President Kabila came to power, the influence in the DRC of Uganda, and in particular of Rwanda, became substantial and that from late spring 1998 President Kabila sought, for various reasons, to reduce this foreign influence. The Court drew attention to the fact that no open-ended consent had been given to Uganda to place its forces in the DRC. Moreover, the issue of withdrawal of consent by the DRC, and that of expansion by Uganda of the scope and nature of its activities, went hand in hand. The Court observed that at the Summit of Heads of State held in Victoria Falls on 7 and 8 August 1998 the DRC accused Rwanda and Uganda of invading its territory. It thus appeared evident to the Court that any

910

Armed Activities on the Territory of the Congo (Congo v. Uganda)

earlier consent by the DRC to the presence of Ugandan troops on its territory had at the latest been withdrawn by 8 August 1998. The Court noted that the dispute about the commencement date of the military action by Uganda that was not covered by consent was, in the most part, directed at the legal characterization of events rather than at whether these events occurred. The Court stated that there was, however, considerable controversy between the Parties over the DRC’s claim regarding towns taken after 10 July 1999. The Court recalled that on this date the Parties had agreed to a ceasefire and to all further provisions of the Lusaka Agreement. The Court examined the position of Uganda that from 11 September 1998 until 10 July 1999 it was acting in self-defence, and that thereafter the presence of its soldiers was again consented to under the Lusaka Agreement. With regard to the last period, the Court concluded that the Lusaka Agreement only represented an agreed modus operandi for the parties, providing a framework for the orderly withdrawal of all foreign forces from the DRC. The Lusaka Agreement did not provide the basis to determine that Ugandan forces had been legally present on the territory of the DRC. With regard to the argument put forward by Uganda that its forces were acting in self-defence, the Court noted that at no time had Uganda sought to justify their presence on the territory of the DRC on this basis. By contrast, military actions of Uganda on the DRC’s territory after 7 August 1998 were firmly rooted in a claimed entitlement "to secure Uganda’s legitimate security interests". The Court further noted that Uganda did not report to the Security Council events that it had regarded as requiring it to act in self-defence. It further stated that Uganda never claimed that it had been subjected to an armed attack by the DRC. Consequently, the Court found that Uganda had violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted interference in the internal affairs of the DRC and in the civil war raging there. The unlawful military intervention by Uganda was of such magnitude and duration that the Court considered it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter. Before turning to the DRC’s second and third submissions, the Court considered the question as to whether or not Uganda was an occupying Power in the parts of the Congolese territory where its troops were present at the relevant time. It observed that, under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied when it is actually placed under the authority of the hostile army,

Armed Activities on the Territory of the Congo (Congo v. Uganda)

911

the occupation extending, however, only to the territory where such authority has been established and can be exercised. The Court stated that it was not disputed between the Parties that General Kazini, commander of the Ugandan forces in the DRC, created the new "province of Kibali-Ituri" in June 1999. It considered that, regardless of whether or not General Kazini acted in violation of orders and was punished as a result, his conduct is clear evidence of the fact that Uganda established and exercised authority in Ituri as an occupying Power. The Court, however, observed that the DRC did not provide any specific evidence to show that Uganda exercised indirect administration through various Congolese rebel factions proving that authority was exercised by the Ugandan armed forces in any areas other than in the Ituri district. The Court thus stated that, being the occupying power in Ituri, Uganda was under an obligation, according to Article 43 of the Hague Regulations, to take all measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party. The Court found that Uganda’s responsibility is engaged both for any acts of 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. Before considering the merits of the DRC’s allegations of violations by Uganda of international human rights law and international humanitarian law, the Court had to deal with a question raised by Uganda concerning the inadmissibility of the DRC’S claim in the absence of Rwanda from the proceedings (indispensable third party claim). The Court pointed out that it had to examine questions of this kind on previous occasions. The Court considered that it had jurisdiction in the current proceedings since the interests of Rwanda did not constitute the "very subject-matter" of the decision to be rendered by it. Turning to the merits of the DRC’s claim, the Court stated that it had credible evidence sufficient to conclude that the Uganda Peoples’ Defence Forces (UPDF) committed acts of killing, torture and other forms of inhumane treatment of the civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, incited ethnic conflict and

912

Armed Activities on the Territory of the Congo (Congo v. Uganda)

took no steps to put an end to such conflicts, was involved in the training of child soldiers, and failed to take measures to ensure respect for human rights and international humanitarian law in Ituri. The Court, however, did not consider that the allegation of the DRC that the Ugandan Government carried out a deliberate policy of terror had been proven although the civil war and the foreign military intervention in the DRC created a general atmosphere of terror pervading the lives of the Congolese people. Turning to the question as to whether acts and omissions of the UPDF and its officers and soldiers are attributable to Uganda, the Court stated that the conduct of the UPDF as a whole is clearly attributable to Uganda, being 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. It is furthermore irrelevant for the attribution of their conduct to Uganda whether UPDF personnel acted contrary to the instructions given or exceeded their authority. 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. The Court found that the acts committed by the UPDF and officers and soldiers of the UPDF were in clear violation of the obligations under the Hague Regulations of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with regard to obligations of an occupying power. Uganda also violated numerous provisions of various international humanitarian law and international human rights law instruments, to which both Uganda and the DRC are parties. Examining the third submission of the DRC concerning the systematic illegal exploitation of natural resources through Ugandan troops, the Court found that it did not have at its disposal credible evidence to prove that there was a governmental policy on the part of Uganda directed at the exploitation of natural resources of the DRC or that Uganda’s military intervention was carried out in order to obtain access to Congolese resources. At the same time, the Court considered that it had ample credible and persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high-ranking officers, were involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities did not take any measures to put an end to these acts. The Court came to the conclusion that it could not uphold the contention of the DRC that Uganda violated the principle of the DRC’s sovereignty over its natural resources. While

Armed Activities on the Territory of the Congo (Congo v. Uganda)

913

recognizing the importance of this principle, the Court did not believe that it was applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State. However, Uganda’s international responsibility for the acts and omissions of members of Uganda’s military forces in the DRC was engaged with regard to their involvement in the looting, plundering and exploitation of natural resources. They acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign army in the territory where it is present. The Court noted in this regard that both Article 47 of the Hague Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949 prohibit pillage. The Court further observed that both the DRC and Uganda are parties to the African Charter on Human and Peoples’ Rights of 27 June 1981, paragraph 2 of Article 21 of which states that "[i]n case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation". The Court found that there was sufficient evidence to support the DRC’s claim that Uganda violated its duty of vigilance by not taking adequate measures to ensure that its military forces did not engage in the looting, plundering and exploitation of the DRC’s natural resources. It followed that by this failure to act Uganda violated its international obligations as occupying power in Ituri, thereby incurring its international responsibility. As for the claim that Uganda also failed to prevent the looting, plundering and illegal exploitation of the DRC’s natural resources by rebel groups outside of Ituri, the Court stressed that the latter were not under the control of Uganda. In respect to the legal consequences of violations of international obligations of Uganda, the DRC requested the Court in its fourth submission to adjudge and declare that Uganda shall cease forthwith all continuing internationally wrongful acts. The Court observed that there was no evidence in the case file that at present Uganda supported irregular forces operating in the DRC and continued to be involved in the exploitation of Congolese natural resources. The Court accordingly concluded that the DRC’s request could not be upheld. The DRC had further requested the Court to rule that Uganda provide specific guarantees and assurances of non-repetition of the wrongful acts complained of. In this respect the Court took the view that the commitments assumed by Uganda under the Tripartite Agreement on Regional Security in the Great Lakes, signed on 26 October 2004 by the DRC, Rwanda and Uganda must be regarded as meeting the DRC’s request for specific guarantees and assurances of non-repetition.

914

Armed Activities on the Territory of the Congo (Congo v. Uganda)

The Court finally observed that it is well established in general international law that a State which bears responsibility for an international wrongful act is under an obligation to make full reparation for the injury caused by that act. The Court held that the request of the DRC that the nature, form and amount of the reparation due to it was to be determined in a subsequent phase of the proceedings, failing agreement between the Parties to that effect in the meantime, was appropriate. With regard to the fifth submission of the DRC, the Court stated that the DRC did not put forward any specific evidence demonstrating that after July 2000 Uganda committed acts in violation of each of the three provisional measures indicated by the Court. The Court however observed that the evidence showed that such violations were committed throughout the period when Ugandan troops were present in the DRC, including the period from 1 July 2000 until practically their final withdrawal on 2 June 2003. The Court thus concluded that Uganda did not comply with the Order. In its consideration of the counter-claims submitted by Uganda, the Court firstly addressed the question whether the DRC was entitled to challenge at this stage of the proceedings the admissibility of the counter-claims. The Court emphasized that the enquiry under Article 80 of the Rules as to admissibility concerned only the question whether a counter-claim was directly connected with the subject-matter of the principal claim; it was not an over-arching test of admissibility. Consequently, the DRC was still entitled to challenge the admissibility of Uganda’s counter-claims. In its first counter-claim, Uganda contended that, since 1994, it had been the victim of military operations and other destabilizing activities carried out by hostile armed groups based in the DRC and either supported or tolerated by successive Congolese governments. In rebutting Uganda’s first counter-claim, the DRC divides it into three periods of time: the period prior to President Laurent-Désiré Kabila coming to power in May 1997; the period starting from the accession to power of President Kabila until 2 August 1998, and the period subsequent to 2 August 1998. The Court examined Uganda’s first counter-claim following these three periods of time. With respect to the merits of the counter-claim for the first period, the Court found that Uganda had not produced sufficient evidence to show that Zaire provided political and military support to anti-Ugandan rebel groups operating in its territory during the Mobutu régime. With regard to the second period, the Court stated that Uganda had failed to provide conclusive evidence of actual support for anti-Ugandan rebel groups by the DRC. The Court

Armed Activities on the Territory of the Congo (Congo v. Uganda)

915

noted that during this period, the DRC was in fact acting together with Uganda against the rebels, not in support of them. In relation to the third period, the Court considered that any military action taken by the DRC against Uganda during this period could not be deemed wrongful since it would be justified as action taken in self-defence under Article 51 of the United Nations Charter. In its second counter-claim, Uganda claimed that Congolese armed forces attacked the premises of the Ugandan Embassy, confiscated property belonging to the Government of Uganda, Ugandan diplomats and Ugandan nationals, and maltreated diplomats and other Ugandan nationals present on the premises of the mission and at Ndjili International Airport. The Court found that there was sufficient evidence to prove the attacks against the Embassy and acts of maltreatment against Ugandan diplomats on Embassy premises and at Ndjili International Airport. It stated that, by committing those acts, the DRC breached its obligations under Articles 22 and 29 of the Vienna Convention on Diplomatic Relations. The Court further found that the removal of property and archives from the Ugandan Embassy was in violation of the rules of international law on diplomatic relations. As to acts not committed in the Embassy premises or against diplomatic personnel the Court found that there was no claim of diplomatic protection by Uganda since the nationality of the persons concerned was not clear. The Court pointed out that it would only be at a subsequent phase, failing an agreement between the Parties, that the specific circumstances of these violations as well as the precise damage suffered by Uganda and the extent of the reparation to which it is entitled would have to be demonstrated. Judge Koroma appended a declaration to the Judgment of the Court; Judges ParraAranguren, Kooijmans, Elaraby and Simma appended separate opinions to the Judgment of the Court; Judge Tomka and Judge ad hoc Verhoeven appended declarations to the Judgment of the Court; Judge ad hoc Kateka appended a dissenting opinion to the Judgment of the Court. As Judge Simma covered nearly all aspects of the case his separate opinion is summarised below. In his separate opinion, Judge Simma emphasized that he was in general agreement with the Court’s Judgment, but expressed concern about three issues on which the Court decided to say nothing. First, Judge Simma associated himself with the criticism expressed in the separate opinion of Judge Elaraby that the Court should have acknowledged that Uganda had committed an act of

916

Armed Activities on the Territory of the Congo (Congo v. Uganda)

aggression. He noted that if there ever was a military activity before the Court that deserves to be qualified as an act of aggression, it was the Ugandan invasion of the DRC. Second, Judge Simma noted that the Court had left unanswered the question whether, even if not attributable to the DRC, cross-boundary military activities of anti-Ugandan rebel groups could have been repelled by Uganda, provided that the rebel attacks were of a scale sufficient to reach the threshold of an "armed attack" within the meaning of Article 51 of the United Nations Charter. In this regard, Judge Simma agreed with the argument presented in the separate opinion of Judge Kooijmans to the effect that the Court should have taken the opportunity offered by this case to clarify the state of the law on this highly controversial matter, an issue left open by its Nicaragua Judgment of two decades ago. He believed that if armed attacks are carried out by irregular bands against a neighbouring State, these activities are still armed attacks even if they cannot be attributed to the territorial State, and they give rise to the right of self-defence within the same limits as in a State-to-State case. Third, Judge Simma stressed that he believed the Court correctly concluded that Uganda could not raise a claim of diplomatic protection regarding acts of maltreatment inflicted on private persons by Congolese soldiers at Ndjili International Airport in Kinshasa in August 1998, but that international human rights and international humanitarian law are applicable to the situation. Judge Simma considered that an unequivocal confirmation by the Court that these persons remained protected under those branches of international law would have been important in the face of current attempts to create legal voids in which human beings may disappear for indefinite periods of time. Judge Simma further commented on whether international humanitarian law should apply also in areas of the territory of a belligerent State generally unaffected by actual armed conflict what according to him depends on whether those areas are somehow connected to the conflict. Judge Simma also made reference to decisions of the ICTY holding that international humanitarian law applies in the entire territory of the belligerent States, whether or not actual combat takes place there. Discussing the substantive rules of international humanitarian law applicable to the persons in question, Judge Simma concluded that although they may not qualify as "protected persons" under Article 4 of the Fourth Geneva Convention, they are, at a minimum, protected by Article 75 of the Protocol I Additional to the Geneva Conventions. He emphasized that there is therefore no legal void in international humanitarian law. Applying international human rights law to the individuals maltreated by the DRC at Ndjili International Airport, Judge Simma noted that the conduct of the DRC violated provisions of

Armed Activities on the Territory of the Congo (Congo v. Uganda)

917

the International Covenant on Civil and Political Rights of 19 December 1966, the African Charter on Human and Peoples’ Rights of 27 June 1981, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, to all of which both the DRC and Uganda are parties. As to international humanitarian law, he concluded with a view to the Wall Opinion of the Court and the ICRC Commentary to common Article 1 of the Geneva Conventions, that regardless of whether the maltreated individuals were Ugandans, Uganda had the right − indeed the duty − to raise the violations of international humanitarian law committed against the persons as part of its duty to "ensure respect" for international humanitarian law. As to human rights law, he concluded with regard to Article 48 of the International Law Commission’s 2001 draft Articles on Responsibility of States for Internationally Wrongful Acts that Uganda would have had standing to raise violations of relevant human rights treaties, according to the fact that at least the core of the obligations deriving from those bodies of law are valid erga omnes.

918

The Judges of the International Court of Justice 2001-2005

Ronny ABRAHAM

France

15.2.2005-(5.2.2009)

Awn Shawkat AL-KHAWASNEH Jordan

6.2.2000-(5.2.2009)

Mohammed BEDJAOUI

Algeria

19.3.1982-30.9.2001

Thomas BUERGENTHAL

United States of America

2.3.2000-(5.2.2015)

Nabil ELARABY

Egypt

12.10.2001- 5.2.2006

Carl-August FLEISCHHAUER

Germany

6.2.1994-5.2.2003

Gilbert GUILLAUME

France

14.9.1987-11.2.2005

(President 2000-2003)

Géza HERCZEGH

Hungary

10.5.1993-5.2.2003

Rosalyn HIGGINS

United Kingdom

12.7.1995- (5.2. 2009)

Peter H. KOOIJMANS

Netherlands

6.2.1997-5.2.2006

Abdul G. KOROMA

Sierra Leone

6.2.1994- (5.2.2012)

Shigeru ODA

Japan

6.2.1976- 5.2.2003

Hisashi OWADA

Japan

6.2.2003- (5.2.2012)

Gonzalo PARRA-ARRANGUREN Venezuela

28.2.1996- (5.2.2009)

The Judges of the International Court of Justice 2001-2005 Raymond RANJEVA

Madagascar

6.2.1991- (5.2.2009)

(Vice-President 2003-2006)

Francisco REZEK

Brazil

6.2.1997-5.2.2006

SHI Jiuyong

China

6.2.1994- (5.2.2012)

(Vice-President 2000-2003) (President 2003-2006)

Bruno SIMMA

Germany

6.2.2003-(5.2.2012)

Peter TOMKA

Slovakia

6.2.2003-(5.2.2012)

Vladlen S. VERESHCHETIN

Russian Federation

26.1.1995-5.2.2006

919

920 Judges ad hoc

Bola AJIBOLA

Nigeria

Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening)

Mohammed BEDJAOUI

Niger

Frontier Dispute (Benin/Niger)

Mohamed BENNOUNA

Benin

Frontier Dispute (Benin/Niger)

Sir Franklin BERMAN

Liechtenstein Certain Property (Liechtenstein v. Germany)

Sayeman BULA-BULA

Congo

Arrest Warrant (Democratic Republic of The Congo v. Belgium)

Jean-Yves DE CARA

Congo

Certain Criminal Proceedings in France (Congo v. France)

Vojin DIMITRIJEVIC

Yugoslavia

Application for Revision (Yugoslavia v. Bosnia and Herzegovina)

Christopher John Robert DUGARD

Rwanda

Armed Activities on the Territory of the Congo (New Application: 2002)

Carl-August FLEISCHHAUER

Germany

Certain Property (Liechtenstein v. Germany) 185

Yves FORTIER

Bahrain

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)

Thomas FRANCK

Indonesia

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

Sead HODZIC

Bosnia and Application for Revision (Yugoslavia Herzegovina v. Bosnia and Herzegovina)186

185 After Judge Simma had recused himself, Germany chose Mr. Fleischhauer to sit as a judge ad

hoc.

Judges ad hoc

921

James L. KATEKA

Uganda

Armed Activities (Congo v. Uganda)

Milenko KRECA

Yugoslavia

Legality of Use of Force (Serbia and Montenegro v. Belgium; Serbia and Montenegro v. Canada; Serbia and Montenegro v. France; Serbia and Montenegro v. Germany; Serbia and Montenegro v. Italy; Serbia and Montenegro v. Netherlands; Serbia and Montenegro v. Portugal; Serbia and Montenegro v. United Kingdom

Pierre MAVUNGU

Congo

Armed Activities on the Territory of the Congo (New Application: 2002)

Ahmed MAHIOU

Bosnia and Application for Revision (Yugoslavia Herzegovina v. Bosnia and Herzegovina)

Kéba MBAYE

Cameroon

Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening)

Felipe H. PAOLILLO

El Salvador

Application for Revision (El Salvador v. Honduras)

Francois RIGAUX

Iran

Oil-Platforms (Iran v. United States of America)

José Maria RUDA

Qatar

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)187

Bernardo SEPULVEDA

Mexico

Avena and Other Mexican Nationals (Mexico v. United States of America)

Modamed SHAHABUDDEEN

Bahrain

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)188

186 After Mr. Hodzic had resigned, Bosnia and Herzegovina chose Mr. Mahiou to sit as a judge ad

hoc. 187 After the passing away of judge ad hoc Ruda on 7 July 1994, Mr. Torres Bernárdez was chosen

by Qatar to sit as a judge ad hoc in the case. 188 After Mr. Shahabuddeen had resigned, Bahrain chose Mr. Fortier to sit as a judge ad hoc.

922

Judges ad hoc Indonesia

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)189

Honduras

Application for Revision (El Salvador v. Honduras)

Qatar

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)

Nicolas VALTICOS

Bahrain

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)190

Joe VERHOEVEN

Congo

Armed Activities (Congo v. Uganda)

Christopher Gregory WEERAMANTRY

Malaysia

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

Christine VAN DEN WYNGAERT

Belgium

Arrest Warrant (Democratic Republic of The Congo v. Belgium)

Santiago TORRES BERNARDEZ

189 After Mr. Shahabuddeen had resigned, Indonesia chose Mr. Franck to sit as a judge ad hoc. 190 After Mr. Valticos had resigned, Bahrain chose Mr. Shahabuddeen to sit as a judge ad hoc.

923

General Index prepared by Gefion Schuler

Acquiescence 192, 255-256, 268-270, 283, 285, 287, 308, 353, 408, 449 Acquisition of Territory see Territory, acquisition and loss Ad hoc Judges see International Court of Justice, Procedure, judges ad hoc Aggression 53, 70, 97-100, 441-442, see also United Nations General Assembly, resolution 3314 (XXIX) Arrest Warrant 23-28, 37-42, 45, 47, 205, 230-232, 234-235, 496-502, 541, 568, 580, 603, 675-677 - in absentia 37, see also International Court of Justice, Jurisdiction, universal jurisdiction in absentia Aut dedere aut judicare 502-503 Basic Principles of Administration of Justice and Equality 206 Boundaries - equidistance line 321, 325-330, 332, 335-336, 342-345, 347-349, 351-352, 355, 357, 361 - land boundaries 298-302, 354 - low-tide elevations 254, 322325, 341-343, 345, 357-362, 364, 366 - maritime boundaries 264, 302305, 319-356, 674 Boundary Convention between Netherlands and Great Britain 189-194 Capital Punishment 736 Charter of the United Nations see United Nations Charter Commerce 478, 484-486, see also International Economic Law,

freedom of commerce Complementarity, Principle of 54, 501 Consent see Dispute Settlement, consent and International Court of Justice, consent of states Constitution of the World Health Organization - Art. 75 614-616, see also International Court of Justice, Jurisdiction, and specific treaties Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 408, 497 Convention on the Elimination of all Forms of Discrimination against Women 717-718 Convention on the Prevention and Punishment of the Crime of Genocide 50, 134-136, 554556, see also Genocide and International Court of Justice, ius standi and Convention on the Prevention and Punishment of the Crime of Genocide Countermeasures 112-113 Crimes Against Humanity 19, 24, 27, 35-36, 50-51, 53-54, 490491, 498-500 Customary Law see International Customary Law Declaration on the Definition of Aggression see United Nations General Assembly resolution 3314 (XXIX) Dependent Territories 505-518 - intertemporal law 141, 143144, 308-309, 506, 510-511 - protectorate 141-144, 505-509,

924

General Index 514-516, 518 - tabula rasa principle 511

Diplomatic Protection 60, 169-172, 207, 225, 373-391, 410, 446, 452-453, 461-473, 577-591, 599, 608-610 see also Vienna Convention on Consular Relations and Optional Protocol and International Law Commission Draft Articles on Diplomatic Protection - and exhaustion of local remedies 374, 378-390, 409, 453, 469, 577-591 - and individual rights 59-63, 170-177, 188-189, 209, 238, 392, 375-387, 461-466, 581-590, 609610, 827 - par in parem non habet imperium 49, 678 Dispute see International Court of Justice, existence of a dispute and International Court of Justice, requirement of a bilateral inter-state dispute and International Court of Justice, Jurisdiction, and existence of a dispute and International Court of Justice, Procedure, submissions to the scope of the dispute Dispute Settlement 453-461, 532533, see also International Court of Justice, peaceful dispute settlement - arbitration 454, 459-460 - consent to the proceedings 457-459 Drafting History see Treaties, Interpretation, travaux préparatoires Dual Nationality 598-599, see also Vienna Convention on Consular Relations and Optional Protocol, Art. 36 Due process 188-189, 235, 237, 242, 392, 629-630, 787, 826

Equality see Basic Principles of Administration of Justice and Equality and Sovereign equality Equity 9 Erga omnes obligations 10-15, 134135, 245-249, 260, 368, 372, 410-411, 451-452, see also International Human Rights Law, and obligations erga omnes and International Humanitarian Law, and obligations erga omnes, and International Law, ius cogens and obligations erga omnes Estoppel 255, 664 European Court of Human Rights 210, 388 Evidence see International Court of Justice, Advisory Opinions, sufficient information and evidence and International Court of Justice, evidence Federal Republic of Yugoslavia (Serbia and Montenegro), legal status 76-83 Force, Prohibition of see Use of Force Foundations of International Law see International Law, foundations Fourth Geneva Convention on the Protection of Civilian Persons in Time of War 11, 14, 101, 194-201, 205, 216, 246, 253, 398, 401, 405-406, 410, 413414, 416-418, 420-422, 425-426, 431, 433-434, 440, 444-446, 449, 451-452, 521, 575, 578, 835 see also Geneva Conventions of 1949 and Protocols of 1977 and Humanitarian Law Friendly Relations Declaration see United Nations General Assembly, resolution 2625 (XXV) Frontiers see Boundaries General Assembly see United Nations General Assembly

General Index Geneva Conventions of 1949 and Protocols of 1977 11, 14, 52, 246, 533, 405-406, 432-433, 445-447, 449-452, 495, 497, 503, 521, 523, 575-576, see also Fourth Geneva Convention on the Protection of Civilian Persons in Time of War and International Humanitarian Law Genocide 24, 53, 134, 500, 532, 534, see also Convention on the Prevention and Punishment of the Crime of Genocide Good Faith 9, 75, 108, 137, 146, 152, 156-158, 160-161, 196, 239, 252, 340, 346, 373, 415, 460, 557, 592, 722, 847 Hague Conventions and Annex 101, 197, 199, 215-216, 218, 253, 398, 405-406, 412-413, 416, 418, 422, 425, 428-431, 433434, 436-437, 440, 454, 495 Head of State 28-30, see also Immunity, of Heads of State - jus repraesentationis omnimodae 28, 714 Human Rights see International Human Rights Law

925

Provisional Measures International Court of Justice - Advisory Opinions see International Court of Justice, Advisory Opinions - ad hoc Chamber 524 - and monitoring by treaty bodies 528 - and pronouncements on the use of force 525-528 - capacity to make suggestions to the parties 519 - certitude 529, 571 - clean hands, principle of 557558 - composition of the Court 560566 - consent of states 534-539 •

and Advisory Opinions 537-539

•

and indispensable-thirdparty doctrine 535-537

- consistency 529

- and jurisdiction 23-28

- existence of a dispute 540-545, 568, see also International Court of Justice, requirement of a bilateral inter-state dispute and International Court of Justice, Jurisdiction, and existence of a dispute and International Court of Justice, Procedure, submissions to the scope of the dispute

- of Heads of State 17, 56-59

- ius standi 545-556

Immunity 16-17, 20, 23-26, 30, 3259, 230-231, 235, 467-468, 491492, 501-502, 676-679, 710-712, 716 - and international accountability 18-20, see also International Criminal Law, universal jurisdiction

- of Ministers of Foreign Affairs 16-20, 24, 32-56, 230, 235, 466468, 490-493, 502, 676-677, see also International Criminal Law, individual criminal responsibility - of States 32-59 Interim Measures of Protection see International Court of Justice,

•

and ius cogens 555-556

•

and Convention on the Prevention and Punishment of the Crime of Genocide 548, 551, 554-556, 569, 572-573, 658, 663-664, 794-795

- judgments see International

926

General Index Court of Justice, Judgments

Justice, Jurisdiction, optional clause and Treaties, compromissory clause

- jurisdiction see International Court of Justice, Jurisdiction - language of the Order 520-524

•

Art. 37 546, 549, 551553, 656, 658

•

Art. 38 99, 212-213, 540, 595, 721

•

Art. 40 681, 738, 765, 777

•

Art. 41 20, 74, 146-149, 594-595, 610, 612-613, 703-707, 713, 717-719, 722-729, 732-734, 736 see also International Court of Justice, Provisional Measures

•

Art. 53 752

•

Art. 56 834, 838

•

Art. 59 147, 321, 651653, 674, 724, 790-791, 823

•

Art. 61 547, 560, 769807, 810-813, 815-819, 821-825, see also International Court of Justice, Judgments, revision

•

Art. 62 149-150, 652, 737-756, 790 see also International Court of Justice, Intervention

•

Art. 63 737

•

Art. 65 834, 838, see also International Court of Justice, Advisory Opinions

•

Art. 94 74

- peaceful dispute settlement 533 - political character of the question and jurisdiction 542543, see also International Court of Justice, Advisory Opinions, legal nature of the question - procedure see International Court of Justice, Procedure - provisional measures see International Court of Justice, Provisional Measures - requirement of a bilateral interstate dispute 532, see also International Court of Justice, existence of a dispute and International Court of Justice, Jurisdiction, and existence of a dispute and International Court of Justice, Procedure, submissions to the scope of the dispute - Statute •

object and purpose 147, 724

•

Art. 13 802

•

Art. 17 563-566

•

Art. 20 702

•

Art. 26 524, 549, 561, 801

•

Art. 31 670-672

•

Art. 34 546, 548, 657

•

Art. 35 83, 546-556, 569-572, 656-658, 794795, 799

•

Art. 36 164, 355, 540, 542, 546, 553, 568, 606, 619, 627, 637, 655-656, 660-661, 666 see also International Court of

- Rules of the Court •

Art. 17 524, 561, 801802

•

Art. 18 561, 801

•

Art. 32 681, 765

General Index •

Art. 34 562

- procedure 851-854

•

Art. 38 573, 606, 650, 660, 665-666, 777

- purpose 845-847

•

Art. 40 606

•

Art. 53 740

•

Art. 56 698

•

Art. 62 695

•

Art. 73 706

•

Art. 79 684-686

•

Art. 80 443, 601, 667, 681, 757-758, 760, 762, 765, 769-770, 773, see also International Court of Justice, Counter-claim

927

- request for an Advisory Opinion 829-834 - sufficient information and evidence 844-845, 801-854 International Court of Justice, Counter-claim 443, 756-773 - admissibility 762-766, 769-773 - direct connection 757-762, 769-773 International Court of Justice, Intervention 737-756 - interest of a legal nature 743748, 750-753

•

Art. 81 738-742, 748749, 755

•

Art. 88 574, 659

- object of the intervention 748749

•

Art. 89 574, 659-660, 666, 773

- procedural requirements 738741

•

Art 97 167, 607, 649, 683-686, 770, 795

- requirement of attached documents 741-742

•

Art. 99 796, 802, 816, 818

•

Art. 100 560-561, 800801

International Court of Justice, Advisory Opinions 828-854 - abstract nature of the question 837 - bilateral nature of the matter 840-842, 850 - discretionary power to decline 838-851

- jurisdictional link 753-756

International Court of Justice, Judgments 774-828 - a contrario interpretation 774, 794 - compliance 826-828 - effects 787-799 - formal balance of the Judgment 787 - formal order of the Judgment 774-784 - inter partes effects 790-791

- jurisdiction 834-851

- jura novit curia 777

- legal nature of the question 834-838, 849, see also International Court of Justice, political character of the question and jurisdiction

- review and reconsideration 784-787

- parallel political negotiations 843-844

- revision 799-825 •

proceedings 802-803, 806-816

•

admissibility 817-818

928

General Index - separate opinions 825-826

International Court of Justice, Jurisdiction 567-667, see also International Court of Justice, Advisory Opinions, jurisdiction - admissibility 593-602 - Advisory Opinions see International Court of Justice, Advisory Opinions, jurisdiction - and third states 650-655 - burden of proof see International Court of Justice, Procedure, burden of proof - compétance de la compétance 660 - compulsory jurisdiction 79, 167, 540, 568, 606-607, 637, 640 - concurring jurisdictions 655657 - consent see Dispute Settlement, consent and International Court of Justice, consent of states

- on the basis of a special agreement 604-606 - on the basis of agreement in the course of the proceedings 649650 - on the basis of specific treaties 606-616, see also Optional Protocol to the Vienna Convention on Consular Relations and Vienna Convention on the Law of Treaties and Constitution of the World Health Organization - optional clause 606, 640, 645, 658 - political and legal nature of the question see International Court of Justice, Advisory Opinions, legal nature of the question and International Court of Justice, political character of the question and jurisdiction

- dismissal in limine litis 657667

- preliminary objections ratione temporis 630-649, see also International Court of Justice, Procedure, preliminary objections

- exhaustion of local remedies 578-591, see also Diplomatic Protection, and exhaustion of local remedies

- proprio motu 520, 574, 616, see also International Court of Justice, Provisional Measures, proprio motu

- existence of a dispute 661, see also International Court of Justice, existence of a dispute and International Court of Justice, requirement of a bilateral inter-state dispute and International Court of Justice, Procedure, submissions to the scope of the dispute

- relevant date to determine the jurisdiction 567

- forum prorogatum 622, 816 - mootness 603, 678 •

relevant date 603-604

- objections to the jurisdiction 607, 628-630

- requirement of prior negotiations 591-593 - scope of jurisdiction 617-628, see also Treaty of Amity Economic Relations and Consular Rights between the United States of America and Iran of 1955 - universal jurisdiction 24, 42, 52, 490-505, 495-504, 667, 676679, 708, 711, 784, see also International Criminal Law, and

General Index jurisdiction - universal jurisdiction in absentia 42, 52, 493, 495-497, 502 International Court of Justice, Procedure 667-773 - burden of proof 688-697 - change of subject matter 674679, 680-682 - counter-claim see International Court of Justice, Counter-claim - evidence 686-703, see also International Court of Justice, Advisory Opinions, sufficient information and evidence - inter partes see International Court of Justice, Judgments, inter partes effects and International Court of Justice, requirement of a bilateral interstate dispute - intervention, see International Court of Justice, Intervention - Judges ad hoc 668-674 - juris tantum presumption 688, 697 - non ultra petita 676, 678-680, 779-781, 783-784 - preliminary objections 682686, see also International Court of Justice, Jurisdiction, preliminary objection ratione temporis - provisional measures see International Court of Justice, Provisional Measures - relevant facts 704 - submissions to the scope of the dispute 667-682, see also International Court of Justice, existence of a dispute and International Court of Justice, requirement of a bilateral interstate dispute and International

929

Court of Justice, Jurisdiction, and existence of a dispute - withdrawal of suit 773 International Court of Justice, Provisional Measures 704-737 - and merits 735-737 - binding effect 20, 146-149, 519, 522-524, 722-729, 731-732 - compliance 722, 729-731, 733735 - jurisdiction 716-721, see also International Court of Justice, Jurisdiction - prerequisites and procedure 708-716 - proprio motu 719, see also International Court of Justice, Jurisdiction, proprio motu International Covenant on Civil and Political Rights of 1966 201204, 261, 369, 372, 393-397, 401-407, 419-420, 425, 431-433, 448, 528, 781, 805 International Covenant on Economic, Social and Cultural Rights of 1966 203-204, 372, 393, 397-398, 401-403, 419, 425, 528 International Criminal Court 37, 53-54, 702 - Rome Statute 50, 54, 135, 500, 503 •

Art. 27 37, 492-493

•

Art. 120 135

International Criminal Law 490505, see also International Criminal Court - individual criminal responsibility 492-493, see also Immunity, of Ministers of Foreign Affairs - irreparable prejudice 504-505 - universal jurisdiction 493-505, see also Immunity, and

930

General Index international accountability

International Customary Law 15-20 - formation 16-20 - opinio juris 17-19 International Economic Law 473490 - bilateral treaties of friendship and commerce, 474-490 see also Treaty of Amity Economic Relations and Consular Rights between the United States of America and Iran of 1955 - freedom of international commerce 475-490, see also Commerce - principle of permanent sovereignty over natural resources 31, 473-474 - freedom of trade 485 International Human Rights Law 391-411 - and humanitarian law 394-395, 404-407, 419-420, 430-433, 447449 - and obligations erga omnes 1415, 410-411, see also International Law, ius cogens and obligations erga omnes - and standing 408-409, 449450, 576-577, see also International Law Commission, Draft Article on Responsibility of States for Internationally Wrongful Acts, Art. 48 International Humanitarian Law 412-453 - and human rights law 394-395, 404-407, 419-420, 430-433, 447449 - and obligations erga omnes 1011, 14-15, 410-411, 450-542, see also International Law, ius cogens and obligations erga omnes - and standing 449-450, 575-

567, see also International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 48 International Law - and civil society organizations 19 - foundations 9 - ius cogens and obligations erga omnes 10-15, see also International Court of Justice, ius standi, and ius cogens and International Human Rights Law, and obligations erga omnes and Right to Self-determination, and obligations erga omnes - sources 10-20 •

general principles of law 20-21

•

international customary law see International Customary Law

- subjects 22-63 •

individuals 59-63

•

states see States

International Law Commission - Draft Articles on Diplomatic Protection 383-386, 585-588 - Draft Articles on Responsibility of States for Internationally Wrongful Acts and Commentary •

Arts. 4,5,8 214-215

•

Art. 7 218

•

Art. 25 89, 222

•

Art. 30 332

•

Art. 33 89

•

Art. 41 12-14, 20, 247248

•

Art. 45 21, 223, 602

•

Art. 47 213-214

General Index •

Art. 48 408-409, 576577

International Minimum Standard Relating to the Treatment of Foreign Nationals 390 International Organizations see United Nations - Interpol 23 International Responsibility see State Responsibility International Treaties see Treaties Interpretation - of judgments see International Court of Justice, Judgments, a contrario interpretation - of treaties, see Treaties, Interpretation and United Nations Charter, interpretation Ius cogens 48, 84, 87, 166, 511, 525, 555-556, 678, see also International Law, ius cogens and obligations erga omnes and Use of Force, and ius cogens Law of Armed Conflict see International Humanitarian Law Law of the Sea 319-367, see also United Nations Conventions on the Law of the Sea Legal Certainty 822 Local Remedies, Exhaustion of see Diplomatic Protection, and exhaustion of local remedies and International Court of Justice, Jurisdiction, and exhaustion of local remedies Lotus Judgment of the Permanent Court of International Justice 27-28, 493, 496 Navigation, Freedom of 356-357 Necessity 108, 113-114, 122, 118, 121, 124, 128, 159, 164, 221222, 619, 623, see also Selfdefence, necessity and proportionality and State Responsibility, and state of necessity and Use of Force, and state of necessity

931

Neutrality 544, 639, 646-647, 687, 768 Obligations of Conduct and Obligations of Result 221, 437, 616, 729 Optional Clause see International Court of Justice, Jurisdiction, optional clause Preparatory Work see Treaties, Interpretation, travaux préparatoires Principle of Non-intervention 95, 129-130 Proportionality 108-109, 113-114, 118, 124, 128, 157, 159-161, 164, 352, 402, 619, 623, 651, 854, see also Self-defence, necessity and proportionality Protectorate 141-144, 506-509, 514516, 518, see also United Nations, trusteeship system Provisional Measures see International Court of Justice, Provisional Measures Reparation see State Responsibility, reparation and compensation Res judicata 252, 338, 453, 457, 459460, 483, 738, 783, 793-794, 795, 822 Responsibility of States see State Responsibility Right of Innocent Passage 357 Right to Self-determination 368-373 - and historic title 260-263, 368, 371 - and obligations erga omnes 1011, 368, 372, see also International Law, ius cogens and obligations erga omnes Security Council see United Nations Security Council Self-defence 92-93, 98, 101-129, 162167,253, 441, 528, 624-628, 702 see also United Nations Charter, Art. 51 - and relationship to treaty law 617-620, 624-625, 627-628

932

General Index - and use of force 85-86

- immunity of states 32-59

- collective self-defence 87, 117, 119, 123, 128, 166

- international legal personality of city states 22-23

- necessity and proportionality 108-110, 113-114, 118, 121-122, 124, 128, see also Necessity and Proportionality and State Responsibility, and state of necessity and Use of Force, and state of necessity

- jurisdiction of states 23-28

Sources of International Law see International Law, sources Sovereign Equality 83, 494, 676, 679 State Responsibility 204-253, see also International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts - and state of necessity 221-222

- organs 28-30 - sovereignty 31, see also Sovereign Equality - succession 31-32 Subjects of International Law see International Law, subjects Succession 31-21, 307, 310-311, 313, 315, 511, 809, see also States, succession Territory 254-298, see also Boundaries - acquisition and loss 88, 136, 254-298

- and treaty violations 206-211

- effectivités 256, 267, 275-298, 359

- and violation of the duty to prevent damage 216-221

- legal and historic title 260-275

- and waiver 222-223

- territorial sovereignty 254-255, 258

- apology as appropriate remedy 207, 224-225, 228

- uti possidetis 295-298, 305319, 704

- assurance of non-repetition 793 - circumstances precluding wrongfulness 221-224 - compensation 30, 216, 244, 352, 434, 519, 544, 648, 716 - consequences of an internationally wrongful act 224253 - imputability 211-218 - reparation 29, 101, 229-234, 241-242, 244-245, 251-253, 389, 409, 469, 473, 479, 481, 500, 536, 568, 644, 648-649, 577, 600, 611, 635.636, 714, 757, 768, 786, 799

Terrorism 54, 116-118 - and Chapter VII of the United Nations Charter 116 Threat to the Peace see United Nations Charter, Art. 39 Torture 408, 701, 703, see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Trade, Freedom of see International Economic Law, freedom of trade Treaties 131-204 - applicability 194-199, 201-204 - compromissory clause 135, 334-335, 573, 641-642, 719, 783

- reparation for moral injury 205

- entrance into force 137

- restitutio in integrum 232

- interpretation see Treaties, Interpretation

States 22-59

General Index - invalidity 136-145

peace and security 74-75

- pacta sunt servanda 141-143, 510, 513, 516-517

- membership 76-83, 658

- reservations 133-136 - suspension and termination 145 - treatymaking capacity 132-133 Treaties, Interpretation 143, 145158, 160-162, 196, 201-203, 516, 722-728 - object and purpose 146-149, 180 - teleological interpretation 503 - travaux préparatoires 153, 171-172, 176, 180, 197, 200, 202, 235, 335, 354, 393, 550, 553, 626, 642 Treaty of Amity Economic Relations and Consular Rights between the United States of America and Iran of 1955 474-490 - and scope of jurisdiction 617628, see also International Court of Justice, Jurisdiction, scope of jurisdiction

- relationship between different organs 66-73 - validity of resolutions 64, see also United Nations General Assembly, validity of resolutions - Security Council see United Nations Security Council - Secretary-General 78, 80, 90, 93, 429, 436, 470, 699, 701, 796, 853 - trusteeship system 75 United Nations Charter - interpretation 73-74, see also Treaties, Interpretation - Art. 1 261 - Art. 2(4) 85-88, 93-94, 96-97, 100, 125,128, 130, 166, 526, 528, 759 - Art. 2(6) 83, see also Use of Force - Art. 4 81

- general commercial treaty 625626

- Art. 10 835

- Art. XX 84-88, 101-103, 107111, 156, 159-166,525-527, 617627, 690-692, 774-779, 781-784, 791-792

- Art. 12 67-69, 71-72, 829-832

Unilateral Acts

- Art. 11 835 - Art. 14 67, 830 - Art. 24 67, 830 - Art. 35 83

-and treaty violation 211

- Art. 39 97

- waivers 21

- Art. 51 85, 87, 93, 105, 111129, 166, 628, 776

United Nations - Commission on Human Rights 398-400, 423-425, 699, 701

- Art. 52 83 - Art. 59 321

- Economic and Social Council 554, 805

- Art. 92 97, 147, 723, 839

- General Assembly see United Nations General Assembly

- Art. 96 834

- maintenance of international

933

- Art. 94 73-74, 728 - Art. 111 147, 723

934

General Index

United Nations Convention on the Law of the Sea 304, 320-325, 330-331, 339-340, 342, 346, 355-356, 358, 360-362, 591-592 United Nations General Assembly 64-66 - and United Nations Security Council 66-73 - request for an Advisory Opinion 67, 829-832, 835, see also International Court of Justice, Advisory Opinions, request for an Advisory Opinion

- resolution 56/60 (2001) 198, 417 - resolution 57/107 (2002) 539, 842 - resolution 58/97 (2003) 198, 373, 417 - resolution ES-10/14 67, 69, 7172, 562, 829, 832, 849 - resolution ES-10/2 70, 833 United Nations Security Council

- validity of resolutions 65-66

- and United Nations General Assembly 66-73

- resolution 377 A (V) 70-72, 832

- resolution 377 A (V) 64, 6972, 832-833

- resolution 181 (II) 75

- resolution 9 (1964) 548, 571

- resolution 637 (VII) 261, 369

- resolution 237 (1967) 198, 417

- resolution 1514 (XV) 261-262, 369-370

- resolution 242 (1967) 75, 565, 848

- resolution 1955 (XV) 68, 831

- resolution 271 (1969) 198, 417

- resolution 1600 (VXI) 68, 831

- resolution 338 (1973) 75

- resolution 1803 (XVII) 31, 474

- resolution 446 (1979) 198, 417, 421

- resolution 1913 (XVIII) 68, 831

- resolution 452 (1979) 421

- resolution 2131 (XX) 262, 370

- resolution 681 (1990) 199, 418

- resolution 2625 (XXV) 10-11, 88, 95, 129-130, 219-220, 223, 245, 262, 370-371

- resolution 799 (1992) 199, 418

- resolution 3201 (VI) 31, 474

- resolution 904 (1994) 199, 418

- resolution 3281 (XXIX) 31, 474

- resolution 1291 (2000) 760

- resolution 3314 (XXIX) 98100, 120, 122, 441 - resolution 40/144 (1985) 60, 171, 376, 462 - resolution 47/1 (1992) 77-79, 570, 797, 804, 805, 815 - resolution 777 (1992) 77 - resolution 55/12 (2000) 72-73, 81, 546, 570, 798, 805, 807

- resolution 777 (1992) 77, 81, 814-815

- resolution 1304 (2000) 701, 760 - resolution 1368 (2001) 115117, 123, 127 - resolution 1373 (2001) 115117, 123, 127 - resolution 1515 (2003) 69, 75, 832, 843, 848 United States Procedural Default Rule 173-175, 185-186, 208210, 229, 236-238, 375, 379,

General Index 382, 387, 465, 579, 581-582, 589, 595, 785, 827, see also Vienna Convention on Consular Relations and Optional Protocol, Art. 36 Uniting for Peace Resolution see United Nations Security Council resolution 377 A (V) Universal Jurisdiction see International Court of Justice, Jurisdiction, universal jurisdiction and International Criminal Law, and jurisdiction Use of Force 83-101, see also International Court of Justice, and pronouncements of the use of force and Self-defence, and use of force - and ius cogens 84, 87, 166 - and reparation 101 - and state of necessity 88-89, see also Self-defence, necessity and proportionality - pre-emptive use of force 127 Uti possidetis see Territory, uti possidetis Vienna Convention on Consular Relations and Optional Protocol 32, 63, 167-189, 207208, 225-226, 606-607, 685, 774, see also Diplomatic Protection - Art. 36 59-63, 149, 168-189, 207-210, 224-229, 234, 242, 374-387, 392, 461-466, 540-541, 559-560, 581-585, 587-590, 595, 597, 599, 608-609, 629-630, 685, 693, 696, 705, 720, 736, 774, 784-786, 793, 826-827, see also Dual nationality and United States Procedural Default Rule - Optional Protocol Art. I 62, 167, 170, 173, 374, 377, 380, 387, 464, 540-541, 590, 594, 607, 610-612, 683, 705, 720, see also International Court of Justice, Jurisdiction, specific

935

treaties Vienna Convention on Diplomatic Relations 32, 56, 389, 468-473, 771-773 - Art. 32 32 Vienna Convention on the Law of the Treaties - Art. 7 138 - Art. 30 648 - Art. 31 103, 146-147, 149, 152-153, 156-157, 160-161, 193, 196, 415-151, 622-623, 722, 724 - Art. 32 147, 152-153, 196, 415, 724 - Art. 33 147 - Art. 44 133 - Art. 46 137-140 - Art. 65 613 - Art. 66 (a) 613-614, see also International Court of Justice, Jurisdiction, specific treaties Violations of 204-253

International

Law