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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.
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[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
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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
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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
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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.
50
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.
52
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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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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.
Subjects of International Law
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.
62
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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
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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
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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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Territory of States
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.
Territory of States
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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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Territory of States
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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Territory of States
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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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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425
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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427
"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.
80
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
461
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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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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463
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.
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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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Diplomacy and Consular Matters
[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.
Diplomacy and Consular Matters
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
Diplomacy and Consular Matters
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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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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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
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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
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The Jurisdiction of the International Court of Justice
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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The Jurisdiction of the International Court of Justice «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.
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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