The International Court of Justice and the Effectiveness of International Law [1 ed.] 9789004328860, 9789004312210

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The International Court of Justice and the Effectiveness of International Law

The Composition of the Curatorium of the Xiamen Academy of International Law President Professor Jiuyong SHI (Former Judge and President of the International Court of Justice) Members Jose Enrique ALVAREZ, Herbert and Rose Rubin (Professor of International Law, New York University Law School) An CHEN (Professor of International Economic Law at Xiamen University) Bin CHENG (Professor Emeritus of Air Law at University of London) Chia-Jui CHENG (Professor of International Law at Soochow University School of Law; Visiting Professor of International Law, Faculty of Law, Xiamen University) José Angelo Estrella FARIA (Secretary-General, UNIDROIT, Rome) Herbert KRONKE (Professor of Law and Director, Institute for Comparative Law, Conflict Laws and International Business Law, Heidelberg University) Yixin LIAO (Professor of Law, Xiamen University) Vaughan LOWE (Chichele Professor of Public International Law at Oxford University) Andreas F. LOWENFELD (Professor of International Law at New York University) H.E. Hisashi OWADA (Judge at the International Court of Justice, Former President of International Court of Justice) Malcolm N. SHAW (Senior Fellow, Lauterpacht Centre, Cambridge University) Nicolas Jan SCHRIJVER (Professor of Public International Law at Leiden University and Academic Director of the Grotius Centre for International Legal Studies of Leiden University) Renaud SORIEUL (Director, International Trade Law Division of the United Nations Office of Legal Affairs and Secretary of the United Nations Commission on International Trade Law (uncitral), Vienna) H.E. Antȏnio Augusto CANCADO TRINDADE ( Judge at the International Court of Justice and Former Judge and President of the Inter-American Court of Human Rights) H.E. Wilfrido V. VILLACORTA (Professor Emeritus and University Fellow, De La Salle University, Manila; Former Deputy Secretary – General of asean) Huaqun ZENG (Director, Institute of International Law, Xiamen University) Chongshi ZHU (President, Xiamen University) Secretary-General Chia-Jui CHENG (Professor of International Law at Soochow University School of Law; Visiting Professor of International Law, Faculty of Law, Xiamen University)

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The International Court of Justice and the Effectiveness of International Law VOLUME 9 2017

By

Philippe Couvreur

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Couvreur, Philippe, 1951- author. Title: The International Court of Justice and the effectiveness of international law / by Philippe Couvreur. Description: Leiden ; Boston : Brill/Nijhoff, [2017] | Series: Collected Courses of the Xiamen Academy of International Law ; 9 | Includes bibliographical references and index. Identifiers: lccn 2016036863 (print) | lccn 2016037314 (ebook) | ISBN 9789004312210 (hardback : alk. paper) | isbn 9789004328860 (E-book) Subjects: LCSH: International Court of Justice. | Pacific settlement of international disputes. | International law. | Effectiveness and validity of law. Classification: LCC KZ6275 .C68 2016 (print) | LCC KZ6275 (ebook) | DDC 341.5/52--dc23 LC record available at https://lccn.loc.gov/2016036863

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1875-4678 isbn 978-90-04-31221-0 (hardback) isbn 978-90-04-32886-0 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Introduction 1 1 A Brief History of the Origins of the icj 8 1 The Origins of the icj: The Trend towards the Institutionalization of International Arbitration 9 2 A Permanent Court of International Justice: From Arbitration to Adjudication 17 3 Brief Overview of the Work and Achievements of the pcij (1922–1946) 31 Select Bibliography 34 2 The Basis and Scope of the Court’s Judicial Function 36 1 A System of Consensual Jurisdiction: The Contentious Jurisdiction 36 2 Compliance with the Judgments and Decisions of the Court 69 3 The Court’s Advisory Jurisdiction as Part of Its Judicial Function 85 Select Bibliography 97 3 The International Court of Justice and the Peaceful Settlement of International Disputes 98 1 Negotiations and the Judicial Settlement of Disputes 100 2 The Court’s Function and the Institutional Architecture of the United Nations for the Peaceful Settlement of Disputes 113 3 The Judicial Settlement of Disputes and the Maintenance of International Peace and Security 119 Select Bibliography 145 4 The icj and the Settlement of Land and Maritime Disputes 146 1 The Role of Legal Titles and Effectivités in the Settlement of Sovereignty and Frontier Disputes 146 2 The Dual Requirements of Legal Security and Effectiveness in the Settlement of Maritime Delimitation Disputes 167 Select Bibliography 203

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5 The icj and the Implementation of the Law of State Responsibility 205 1 The Basic Principles of the International Responsibility of States 207 2 The Consequences of an Internationally Wrongful Act: The Content of State Responsibility 229 3 The Implementation of State Responsibility before the Court 240 Select Bibliography 263 Conclusion 264 Index 269

Introduction* Questioning the effectiveness of international law is clearly of the utmost importance and, at the same time, a daunting task, both from an essential/ theoretical and an existential/practical point of view. It may first be understood as questioning the very being, in fact, of international law as such and therefore involves identifying the criteria by which the reality of international law may be ascertained. This is principally a matter for legal theorists or political scientists. However, assessing the effectiveness of international law also— and most commonly—raises the more pragmatic question of whether States (or other subjects of rights and obligations) actually comply with legal rules at the international level. From both perspectives the question is that of the relationship between law and fact. Charles de Visscher, a distinguished Belgian law professor and later judge at the Hague Court, who wrote prominently about the notion of effectiveness (effectivité) and contributed to its general understanding, stated precisely that: [t]he notion of effectiveness touches on that of reality in the relationship between fact and law. The jurist looks to the real world in order to ascertain the weight of support that attaches to what is objectively valid. In the field of international law, he resorts to that reality either to find in it the justification for an established order, or for the purpose of advocating a new formulation of the law or a principle for the solution of a conflict of legal claims.1 He also noted that: [a]lthough effectiveness would not appear to be a principle of international law in the true sense of the term, it does however very much reflect the spirit of that law, because of the fact that, through particularly frequent recourse to the “actual” and the “real”, it tends generally to overcome its constraints of form and its most obvious weaknesses, freeing * Registrar of the International Court of Justice. The views expressed herein are strictly personal. I wish to express my warmest thanks to my Special Assistant, Mr. Antoine Ollivier, for his very valuable assistance. The text has been finalized, and is up to date, as at 15 October 2015. 1 Charles de Visscher, Les effectivités du droit international public, Paris, Pedone, 1967, p. 13 (translation).

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Introduction

itself from more or less artificial representations and constructions, so as to achieve, on the counts of equity, practicability, stability and above all finality, the full realization of the rule of law.2 In this respect, it is indisputable that international law presents some features of its own, namely that it still rests, fundamentally, on the juxtaposition and coexistence of sovereign entities.3 States, as the primary “subjects” of international law, are both the main authors and addressees of international norms. The creation of rights and obligations in the international legal order is still based essentially on the will or consent of States. The law-making function in that legal order is not entrusted to a central organ and responsibility for implementation and enforcement of international norms mostly rests with the States themselves, since, contrary to what may occur in more integrated regional societies, there exist no agencies entrusted with the task of guaranteeing compliance with the rules of law at the universal level. It is against this well-known background that the following statement, made by the International Court of Justice (the “icj” or the “Court”) in 1966, should be read: “[i]n the international field, the existence of obligations that cannot in the last resort be enforced by any legal process, has always been the rule rather than the exception”.4 These characteristics of international law have generally been viewed as an obstacle to its effectiveness. That being said, it remains of course true, as the Court has repeatedly made clear, that: the absence of a court or tribunal with jurisdiction to resolve disputes about compliance with a particular obligation under international law does not affect the existence and binding force of that obligation. States are required to fulfil their obligations under international law…and they remain responsible for acts contrary to international law which are attributable to them.5 2 Ibid., p. 10. 3 P. Reuter, “Principes de droit international public”, Collected Courses of the Hague Academy of International Law, vol. 103 (1961–II), p. 438. 4 South-West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, i.c.j. Reports 1966, p. 46, para. 86. 5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, i.c.j. Reports 2015, p. 46, para. 86. See also Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 2006, pp. 52–53, para. 127, and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (i), p. 104, para. 148.

Introduction

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Be that as it may, the establishment of mechanisms and institutions for the pacific settlement of international disputes has been one of the greatest achievements thus far towards establishing a more effective international legal system. As described in the first chapter, this movement began only relatively recently, i.e., from the end of the nineteenth century. Significant progress was nonetheless made over a short period of time, leading to the current state of general international law and organization. It is in this context that the first jurisdictional machinery for the settlement of international disputes was created. Obviously, the introduction of an institutionalized form of dispute settlement by an international and permanent court has not been a straightforward process. Recourse to an impartial third party, intended to replace the call to arms in international society, might at first appear a utopian dream or chimera. Nevertheless, thanks to the pragmatism of many of the “fathers” of international justice who promoted and facilitated it, the development of a judicial means of settling international disputes soon became a reality. This historical movement, developed around the founding concept of “peace through law”, was decisive in establishing a concrete link between the extension of peace and the rule of law in international relations, on the one hand, and the existence of judicial institutions in which sovereign States could have full confidence, on the other. The first permanent court with universal and general jurisdiction—the Permanent Court of International Justice (pcij)—was created in the 1920s in the wake of the League of Nations, following previous unsuccessful attempts at achieving such a goal. Although the drafters of the pcij’s Statute benefited from the experience gained in the field of international arbitration, they were acutely aware that they were breaking new ground in the settlement of international disputes, and reference was made to the Court having to go through a “trial period”.6 However, it proved so effective that the main innovations they introduced were maintained and consolidated over the years, in particular after the Second World War. The idea of creating a new court—the icj—in the general context of the establishment of the United Nations did not imply calling into question the very positive experience of the pcij. On the contrary, the Statute of the icj is based on that of its predecessor. As will be discussed in more detail in the following chapters, the hopes and aims of creating a permanent, international tribunal for settling disputes between States have largely been fulfilled. The effectiveness of a court is always dependent on its capacity to adapt to the evolving needs and circumstances

6 p.c.i.j., Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, p. 195 (Baron Descamps).

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Introduction

of the society in which it operates. This is true of the icj. In almost 70 years of existence (in addition to the 18 years during which the pcij was operational), the Court has generally achieved the two main goals of any judicial institution: first, to ensure that peace is preserved or restored when members of a given society experience conflicts or disputes; and second, to ensure that peaceful relations are maintained and disputes resolved not at the cost of justice and equality, but on the basis of rules that are both legitimate and predictable. In this regard, by fulfilling its judicial function, the Court has been instrumental in ensuring the effectiveness of the rule of law at the international level. Regarding the first of these goals, the Court provides States with an independent and impartial forum that is permanently available for the settlement of their disputes in accordance with international law. This function has been linked, from the very beginnings of the pcij, to the furtherance of peace and social order, as it is with any judicial body. The Court’s involvement in and contribution to this objective has nonetheless varied greatly over time. Indeed, the universal prohibition of the use of force only dates back to the aftermath of the Second World War. The respective roles of the pcij and the icj, as mechanisms for the peaceful settlement of disputes, cannot therefore be completely equated. Moreover, the place of the icj in the framework of the United Nations, of which it is the principal judicial organ, has not only enhanced its status and role from an institutional point of view with regard to the first purpose of the Organization—the maintenance of international peace and security—but the practice of States has also significantly evolved, with States submitting disputes directly affecting international peace and security to the Court since the dawn of the 1980s. The icj was thus called upon to assert its proper role and function in such cases, and to promote the complementarity of the judicial settlement of disputes with the political functions entrusted to other United Nations organs.7 The general course taught by Charles de Visscher in 1954 at the Hague Academy of International Law provides a measure of the ground covered since then by the Court. The illustrious professor, who sat on the bench of both the Permanent Court and the present Court, pointed out at the time that “not all disputes between States are equally capable of settlement by judicial means” and “it must even be acknowledged that…the most important of them, those which are likely to pose the most serious threat to peace, are not”.8 In half a century, the Court has pushed back the limits of judicial settlement in this respect. It has demonstrated that the ideal of “peace through law”, referred to

7 These questions are further addressed below in Chapter 3. 8 Charles de Visscher, “Cours général de principes de droit international public”, Collected Courses of the Hague Academy of International Law, 1954, Vol. 86 (1954-II), p. 512 (translation).

Introduction

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above, so firmly anchored in people’s minds at the beginning of the twentieth century, has not become a chimera. Regarding the second goal, it is clear that, beyond the peaceful settlement of international disputes as such, the Court also makes an important contribution to the strengthening and enhancement of one of the most pre-eminent instruments thereof, i.e., the rule of law at the international level. Here we may again quote Charles de Visscher, according to whom: more than the establishment of peace, the development of international law is the essential function of judicial settlement by a permanent and institutionalized tribunal. The gradual elaboration of the law through the accumulation of a body of homogeneous decisions is a condition of order and stability. A more precise knowledge of the law enlightens States in the daily conduct of their mutual relations; promotes their recourse to justice; and may facilitate acceptance of compulsory jurisdiction.9 As well as the Court’s direct participation in the achievement of the purposes of the United Nations, the jurisprudence that has been developed by the Court over a period of almost 70 years, during which time the needs of international society have evolved, has made a unique contribution to the confirmation and strengthening of the law in international relations. The Court has thus played and continues to play an irreplaceable role in the “promotion of the rule of law” at the international level.10 Several examples of this contribution will be given in the course of these lectures. It may be briefly summarized by highlighting the three essential pillars of the rule of law in which the Court plays a significant role at the international level. First, all of the Court’s activities are directed towards the promotion of the rule of law, in so far as they aim to ensure respect for the law and justice within international society. In this regard, the Court’s decisions provide a point of reference in a number of areas which can help both States and international organizations “guide all of their activities and accord predictability and legitimacy to their actions”.11 9 10

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Charles de Visscher, Theory and Reality in International Law, translated by P.E. Corbett, Princeton University Press, 1957, p. 390. Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, 24 September 2012, A/RES/67/1. See Ph. Couvreur, “The International Court of Justice”, in The Contribution of International and Supranational Courts to the Rule of Law, G. De Baere, J. Wouters, (eds.), Leuven Global Governance S­ eries, Cheltenham/Northampton, UK/USA: Edward Elgar Pub., 2015, pp. 85–126. Ibid., para. 2.

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Introduction

Secondly, the Court’s contribution to the promotion of the rule of law can be measured by the influence exerted by its jurisprudence on the development of international law. In fulfilling its mission to apply international law, the Court has often played a key role in the crystallization of new norms of international law. Its influence is particularly evident in the definition of the principles to be applied in the delimitation of continental shelves and exclusive economic zones. The Court has also been central in establishing and developing the principles governing the international responsibility of States. In these two areas—discussed in more detail in Chapters 4 and 5 below—codification work has relied heavily on the Court’s jurisprudence and the solutions it has identified when disputes have been submitted to it. It goes without saying that the Court, in its turn, has also relied on the vast works of codification conducted throughout the twentieth century to identify certain principles and rules, the customary nature of which it has confirmed. Thirdly and finally, in addition to respect for and the development of international law, the Court has a particular responsibility for ensuring the consistency and unity of international law, factors which are undoubtedly just as important for the creation of an international society founded on law. Its duty to do so derives from its unique status as the world’s highest Court, as well as its universality. The icj is thus not only the principal judicial organ of the United Nations, but also, as it has described itself, “the organ” of international law,12 whose decisions and jurisprudence have particular authority and legitimacy. Both its judgments and its advisory opinions provide a unique instrument for identifying the law and a guide to its application. The Court’s task in this area has nevertheless evolved since 1945, in order to take account of both the growing complexity of international society and the increase in the number of organizations and other bodies charged with producing and applying the law. In this connection, the icj’s recent jurisprudence demonstrates its concern to be mindful of the creation of new legal bodies, at both the national and international levels, which may have been called upon to interpret and apply rules of which the Court must also take cognizance. While never abdicating its own judgment or the mission specifically assigned to it, the Court is thus able to ensure that the progress of law within international society does not come at the price of greater legal instability and insecurity; in the words of the Court: “[t]he point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the 12

Corfu Channel, Judgment of 9 April 1949, i.c.j. Reports 1949, p. 35.

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Introduction

individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.”13 * Returning to the characteristics of the international legal order described at the outset, it is important not to lose sight of what is a decisive (and still prevalent) factor in shaping current international legal relations between States, namely the sovereign equality of States. It follows that States, as a matter of principle, remain free to select the means by which their disputes are settled, provided that they respect the principles of the United Nations Charter, as well as the principles of justice and international law.14 The Court, like any other third party involved in the settlement of international disputes, but with the additional responsibility of being the principal judicial organ of the United Nations, has to inspire States with confidence in its ability to carry out its mission. Indeed, State consent is still required in order for the Court to exercise its judicial function. As witnessed by its ever-expanding workload over the last decades, the icj has proved itself capable of responding to the aspirations of States in this respect. It has thus contributed greatly to the enforcement of international obligations becoming more and more the rule rather than the exception in the international sphere. The following chapters provide a description of the main achievements brought about in this respect by the creation of the icj (Chapter 1), the basis and scope of its function as a judicial institution (Chapter 2), its relationship with other means of settling disputes and its integration in the United Nations (Chapter 3), and finally its substantial contribution in two areas of great significance for the promotion and strengthening of peaceful relations between States, namely the settlement of land and maritime disputes (Chapter 4) and the implementation of the law of State responsibility (Chapter 5).

13 14

Ahmadou Sadio Diallo, Judgment of 30 November 2010, i.c.j. Reports 2010 (ii), p. 664, para. 66. See para. 3 of the Manila Declaration on the Peaceful Settlement of International Disputes, 15 November 1982, A/RES/37/10.

chapter 1

A Brief History of the Origins of the icj The establishment of the League of Nations, in 1920, under the Treaty of Versailles, the peace treaty that formally ended the First World War, seemed like the crowning achievement of years of impassioned struggle for peace in the late nineteenth century and beginning of the twentieth century. The Treaty of Versailles was signed on 28 June 1919. Chapter 1 of the Treaty, i.e., the Covenant of the League of Nations, was the constitutional document of the League. According to the Preamble of this constitution, the League’s purpose was “to promote international co—operation and to achieve international peace and security”. Indeed, the role played by this first political organization of a universal character might appear relatively modest, in retrospect, given the failure of the embryonic system of collective security laid down in the Covenant to prevent major conflicts, which failure would finally turn, with the Second World War, into the dislocation of the international society and the setback of the main principles upon which the League of Nations had been based. Nevertheless, the years of the League of Nations allowed a number of significant developments with regard to the functioning of an international organization designed to deal with the peaceful settlement of disputes, the recognition of fundamental principles of international law (including the progressive prohibition of the use of force), as well as in other fields of cooperation among States. Thus, notwithstanding the radical change which occurred with the adoption of the United Nations Charter in 1945, in particular the institution of an almost completely new system of collective security, the League of Nations brought major innovations, which would be then adopted without substantial modifications in the framework of the newly established Organization of the United Nations (“un”, or “United Nations”). The establishment of the first permanent international tribunal, with a general (although optional) and universal jurisdiction, the “Permanent Court of International Justice” (pcij), counts among one of such achievements of the League of Nations. The mission of the pcij was taken over by the International Court of Justice (icj), the principal judicial organ of the United Nations, from 1946 onwards. Given the continuity between the two successive Hague Courts, the events preceding the creation of the former should be recalled, as well as the major, albeit sometimes underrated work accomplished by the pcij in a relatively short period of time and under difficult political circumstances.

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A Brief History Of The Origins Of The Icj

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The Origins of the icj: The Trend towards the Institutionalization of International Arbitration

The modern history of international arbitration is generally recognized as dating back to the end of the eighteenth century and, in particular, to the so-called Jay Treaty of 1794 between the United States of America and Great Britain.1 This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals designated in equal numbers by both parties, who were tasked with settling a number of outstanding questions between the two countries which it had not been possible to resolve by negotiation. These questions related mainly to private claims from British subjects arising out of losses suffered during or in the aftermath of the American War of Independence (as well as with prize cases, i.e., relating to ships captured during wartime). While the right to compensation for these losses had been acknowledged by treaty between the two Parties (Treaty of Paris, 1783), the effective settlement of the claims was left to the domestic courts of the State bearing the responsibility, as was the usual practice followed at that time in the context of peace treaties. That system did not, however, appear to be satisfactory: “The us judicial system… proved incapable of a bona fide application. State governments interfered with the settlement of British claims, not considering themselves bound by the treaty concluded by the Congress”.2 The effect of the parties’ consent in the treaty to have such claims settled by a mixed commission “according to justice and equity” was that “the sensitive question of dealing with the aftermath of the American Revolution was withdrawn from American domestic jurisdiction”,3 thus placing the two countries on an equal footing, and ensuring effective settlement of the outstanding questions. While it is true that these mixed commissions were not strictly speaking organs of third-party adjudication, they were intended to function to some extent as tribunals. In particular, the rules of procedure provided for the appointment and participation of an equal number of members from both sides, with a presiding member (“umpire”) chosen by agreement between the four appointed members (the us and Great Britain each appointing two of their nationals as members). “These rules were obviously aimed at preventing both 1 See, C.G. Roelofsen, “International Arbitration and Courts”, in The Oxford Handbook of the History of International Law B. Fassbender & A. Peters, (eds.) Oxford: Oxford University Press, 2012, pp. 145–169, in particular pp. 159 et seq. 2 Ibid., p. 161. 3 Idem.

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a stalemate [and consequently at ensuring the effective settlement of the disputes] and an absolute preponderance of the national majority of a commission [thereby guaranteeing the equality of the parties]”.4 The mixed commissions re-awakened interest in the process of arbitration. Throughout the nineteenth century, both the United States and Britain had recourse to them, as did other States in Europe and the Americas. The Alabama Claims arbitration in 1872, between the United Kingdom and the United States, marked the start of a second, and still more decisive, phase in the development of modern international arbitration. Under the Treaty of Washington of 1871, the United States and the United Kingdom agreed to submit to arbitration claims by the former for alleged breaches of neutrality by the latter during the American Civil War (several warships built in Great Britain had aided the Confederation in seizing American merchant ships during the American civil war). The two countries set out certain rules governing the duties of neutral governments that were to be applied by the tribunal, which they agreed should consist of five members, to be appointed respectively by the Heads of State of the United States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not being parties to the case. It was the first time that an arbitral tribunal, made up of a majority of judges of a nationality different from that of the parties, had been created (Alexander Cockburn (United Kingdom), Charles Francis Adams Sr. (United States), Federico Sclopis (Italy), Jakob Stämpfli (Swiss Confederation) and Marcos Antônio de Araújo (Brazil)). Also, the procedure developed by this tribunal had many of the characteristics of judicial procedure as known in national legal orders. Decisions were to be made by a majority. The parties were to appoint agents and counsel, and were to exchange written pleadings (as well as, to a limited extent, oral arguments).5 The Tribunal, which met in Geneva, awarded 15.5 million dollars to the United States in reparation for breaches of neutrality by the British Government (Award of 14 September 1872). The award was executed straight away by the United Kingdom, notwithstanding the dissenting opinion of the British arbitrator. The proceedings served as a demonstration of the effectiveness of arbitration in the settlement of a major dispute and it led, during the latter years of the nineteenth century, to various further developments, namely a sharp growth in the practice of inserting clauses in treaties providing for recourse to

4 Ibid., p. 162. 5 See T. Bingham, “The Alabama Claims Arbitration”, Int. & Comp. Law Quarterly, Vol. 54 (2005), pp. 1–25.

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arbitration in the event of a dispute between the parties;6 efforts to construct a general law of arbitration, so that countries wishing to have recourse to this means of settling disputes would not be obliged to agree each time on every rules of the arbitral procedure to be followed by the arbitral tribunal;7 proposals for the creation of a permanent international arbitral tribunal in order to obviate the need to set up a special ad hoc tribunal to decide each dispute. All these ideas, projects and proposals would be further debated during the two Hague International Peace Conferences of 1899 and 1907. * It was in The Hague (The Netherlands) that the States set out to streamline international arbitration. Gathering together delegates from 26 States in 1899, and delegates from 44 States in 1907, the Hague Peace Conferences followed an initiative by Tsar Nicolas ii of Russia. The Hague Conferences, for the first time in history, sought to slow down the arms race and initiate debate on the maintenance of international peace.8 The Conferences were also supposed to help codify and develop the laws and customs of war. A number of conventions, forming what is sometimes referred to as the “Hague law”, would regulate war on land and sea. 6 As noted by M. Hudson, “[a]greements in advance to have resort to arbitration [were] hardly known before 1785 … Compromissory clauses were included in some of the multipartite instruments of the later part of the nineteenth century: e.g., in Article 16 of the Universal Postal Convention of October 9 1874, Article 55 of the General Act of Brussels of July 2, 1890, and Article 57 of the Convention on Railway Freight Transportation of October 14, 1890”, The Permanent Court of International Justice, 1920–1942, (1943), reed. Garland Publishing, New York and London, 1973, p. 3. 7 Learned societies worked on such projects: in 1875 (two years after its establishment), the Institut de droit international adopted a code for arbitral procedure. 8 Tsar Nicholas’ circular letter to the States invited to participate in the 1899 Conference was drafted in the following terms: “The maintenance of general peace, and a possible reduction of the excessive armaments which weigh upon all nations present themselves, in the existing condition of the whole world, as the ideals towards which the endeavors of all Governments should be directed…This conference would be…a happy presage for the century about to open. It would converge to a single powerful force the efforts of all States which sincerely wish the great conception of universal peace to triumph over the elements of disturbance and discord. It would at the same time cement their agreement by a solemn avowal of the principles of equity and law, upon which repose the security of States and the welfare of peoples”. See “Russian Circular Note proposing the first Peace Conference”, in The Hague Peace Conference of 1899 and 1907 and International Arbitration, S. Rosenne (ed.), tmc Asser, 2001, pp. 23–24.

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The First Hague Conference (1899) concluded its work with the adoption of a Final Act, the Convention (ii) regarding the Laws and Customs of War on Land, and the Convention (iii) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 (for the Amelioration of the Condition of the Wounded in Armies in the Field; the first “Geneva Convention”). It also adopted three Declarations: 1. To prohibit the launching of projectiles and explosives from balloons or by other similar new methods; 2. To prohibit the use of projectiles, the only object of which is the diffusion of asphyxiating or deleterious gases; and 3. To prohibit the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (dumdum bullets). The participants also devoted themselves to facilitating the practice of arbitration at the same time as regulating the use of force in inter-State relations.9 On 29 July 1899, the participants in the First Hague Peace Conference thus adopted a Convention for the Peaceful Adjustment of International Differences (Convention i), which regulated the various ways, political and legal, of settling inter-State conflicts. According to Manley Hudson, this Convention, “the greatest achievement of the Peace Conference, was in a sense a codification of the law of pacific settlement up to that time”.10 The 1899 Convention i concerned good offices, mediation, international commissions of enquiry and international arbitration. Generally speaking, the adoption of the Convention did not break new ground with regard to the duty to peacefully resolve international disputes. It merely provided that “[i] n case of serious disagreement or conflict, before an appeal to arms the Signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers” (Art. 2). Good offices and mediation are diplomatic methods of settlement which imply the involvement of third States, strangers to the dispute, either in order to act as an intermediary in the negotiations between the parties or in order 9

10

Among the eight items on Count Mouravieff’s programme for the first Conference was: “8. Acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration in cases where they are available, with the purpose of preventing armed conflicts between nations; understanding in relation to their mode of operation and establishment of uniform practice in employing them”. M. Hudson, The Permanent Court of International Justice, 1920–1942, op cit., note 6, p. 4. The Convention entered into force on 4 September 1900 (with the ratifications of 17 of the 26 signatories).

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to propose a settlement of the dispute on which the disputing parties may agree.11 The 1899 Convention also provided for the creation of international commissions of enquiry, if the parties in conflict so agreed, and embodied the general principles governing such bodies.12 Commissions of inquiry were rarely set up in practice, and only three commissions were created under the provisions of the Convention in 40 years.13 The 1899 Convention further provided that international arbitration had for its object “the settlement of differences between States by judges of their own choice, and on the basis of respect for law” (Art. 15). By adopting the Convention, States parties recognized that “[i]n questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration [was]… the most effective, and at the same time the most equitable, means of settling disputes which diplomacy ha[d] failed to settle”.14 However, the Convention did not constitute an agreement which would bind States parties to arbitrate their disputes. Indeed, as it expressly specified, they “who have recourse to arbitration [shall] sign a special Act (‘Compromis’), in which the subject of the difference is clearly defined, as well as the extent of the Arbitrators’ powers. This Act implies the undertaking of the parties to submit loyally to the Award” (Art. 31). With a view to facilitate recourse to arbitration, the Convention established a “Permanent Court of Arbitration” (pca), which was to consist, on the one hand, of a list of jurisconsults, designated by the Signatory Powers, and among whom the parties to a dispute might choose arbitrators, and, on the other hand, an International Bureau, acting as the Secretariat of Arbitral Tribunals to be constituted. 11

12

13

14

“The part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance” (Art. 4). “Good offices and mediation, either at the request of the parties at variance, or on the initiative of Powers strangers to the dispute, have exclusively the character of advice, and never have binding force” (Art. 6). “In differences of an international nature involving neither honour nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means of diplomacy, should, as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation” (Art. 9). See Arts. 10–14. M. Hudson, The Permanent Court of International Justice, 1920–1942, op cit., note 6, p. 40. The provisions on commissions of enquiries were expanded by the 1907 Conference, so that the procedure would very much look like a judicial procedure. Art. 16.

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The Second Hague Peace Conference (1907) had been called at the suggestion of us President Theodore Roosevelt already in 1904, but it was postponed because of the war between Russia and Japan. The Second Conference, which all the States of Central and South America were invited to attend, was eventually held from 15 June to 18 October 1907. The purpose of the Conference was to expand upon the 1899 Hague Conventions by modifying some parts of them and adding new topics; in particular, the 1907 Conference had an increased focus on naval warfare. The British endeavoured to secure limitation of armaments, but these efforts were defeated by the other powers, led by Germany, which feared a British attempt to stop the growth of the German fleet. Germany also rejected proposals for compulsory arbitration. However, the Conference did enlarge the machinery for voluntary arbitration and established conventions regulating the collection of debts, rules of war, and the rights and obligations of neutrals. The instruments of the Second Conference were signed on 18 October 1907 and consisted of 13 treaties—of which 12 entered into force (the only exception being the Convention relative to the Creation of an International Prize Court (Convention xii))—one declaration, and a Final Act. Except Conventions i and ii (“Drago-Porter”, see infra), all the conventions and the declaration related to the laws of war (including the law of neutrality). The 1907 Convention (i) for the Pacific Settlement of International Disputes confirmed the customary law of arbitration, adding certain clarifications and new rules to it. As already indicated, the renewed attempts, in 1907, to establish a system of compulsory arbitration failed. No general treaty of arbitration was adopted, entailing the obligation for States to submit their disputes to arbitration, but instead a mere declaration by which the Conference unanimously agreed in “admitting the principle of obligatory arbitration” and “in declaring that certain disputes, in particular those relating to the interpretation and application of the provisions of international agreements, may be submitted to compulsory arbitration without any restriction”.15 * The importance of the establishment of the pca was not so much reflected in the (relatively modest) number of cases which were eventually submitted under the provisions of the 1899 Convention (and later the 1907 Convention), 15

Final Act of the Second International Peace Conference, 1907, reproduced in The Hague Peace Conference of 1899 and 1907 and International Arbitration: Reports and Documents, S. Rosenne (ed.), op cit., note 8, p. 411.

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but rather in the fact that some of the most powerful countries at that time (France, Germany, Great Britain, United States) had recourse to arbitration in order to settle disputes. Awards of the tribunals touched upon important questions of international law, such as the treatment of aliens/diplomatic protection, seizure of ships, acquisition of territory (Island of Palmas, 4 April 1928) or delimitation of boundaries, even if they “lacked [that] continuity and consistency which would constitute them a body of cumulative jurisprudence”.16 “Perhaps in some of the cases they were not adequately grounded on citations of existing law”,17 and concerns were to be expressed that “there was at times a tendency for the arbitrators to consider themselves as mediators rather than as faithful interpreters of law, as diplomats rather than as judges, as conciliators called upon to decide between States in the way least painful to each of them, rather than as judges, whose duty is to administer impartial justice”.18 Nonetheless, the attempts made in The Hague towards the institutionalization of arbitration demonstrated the value of this method of dispute settlement, and, more generally, illustrated the increased confidence of States in such peaceful means of settling disputes. More than 60 arbitration treaties were concluded between 1899 and 1907, and compromissory clauses were included in around 40 treaties of amity, friendship, and commerce during the same period.19 Arbitration thus progressively became an acceptable means to restrict and prevent the use of force in international relations. The 1907 Hague Convention ii respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, which came to be known as the “Drago-Porter Convention” (from the names of Luis Maria Drago, Argentinian Minister of Foreign Affairs, and General Horace Porter, us delegate to the Hague Conference), constituted the first step towards the prohibition of the use of force in general i­ nternational 16 17 18

19

M. Hudson, The Permanent Court of International Justice, 1920–1942, op cit., note 6, pp. 34–35 (quoting an observation in the same vein made at the 1907 Conference). Idem. Final Report of the Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, p. 694. See also Root’s Instructions (31 May 1907) to the American Delegation to the Hague Conference: “It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all considerations and influences which affect diplomatic agents. The two methods are radically different”. D. Schindler, “Les progrès de l’arbitrage obligatoire depuis la création de la société des Nations”, r.c.a.d.i., vol. 25 (1928), p. 242.

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law, by imposing the prior attempt to settle a claim for the recovery of contract debts through arbitration before resorting to war.20 * Certain States considered the progress made by the two Peace Conferences to be inadequate. They criticized the Permanent Court of Arbitration for being neither a true court nor a genuinely permanent institution (as described by the American delegate, J.B. Scott, the body was “neither a court nor permanent”). It is in this context that the Second Hague Conference discussed the establishment of a Court of Arbitral Justice, in addition to the Permanent Court of Arbitration, but the draft Convention for the establishment of such a Court could not be adopted. The main purpose of this project, as stated in Article 1, was to “promote the cause of arbitration” and “to [ensure] the continuity in arbitral jurisprudence”. Russia proposed the formation of an optional permanent court, consisting of three judges appointed by secret ballot at an annual meeting of the personalities forming the list of the Permanent Court of Arbitration. The United States went further. It wanted the creation of a true permanent court, with regular sessions, composed of independent and immovable judges representing the various legal systems in the world and called upon to rule in law. It did not wish to replace the Permanent Court of Arbitration, but to limit its jurisdiction to political cases and to reserve legal disputes for the new court. One of the most delicate problems, which would arise over and over again subsequently, was to ensure the presence on the Bench of judges who were nationals of the major powers of the time, while leaving at the same time sufficient opportunities for other States to have a judge of their nationality on the Bench, at regular intervals.21 This problem could not be resolved in 1907 and the American proposal, which served as a basis for discussion, was not taken

20

21

“The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. This undertaking is, however, not applicable when the Debtor State refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, prevents any ‘compromis’ from being agreed on, or, after the arbitration, fails to submit to the award” (Art. 1). “In 1907, the plan for an Arbitral Court of Justice afforded the Great Powers a permanent judge upon the Court, whereas the other Powers were to be represented in rotation. It was rejected at the urgent instance of Brazil, by all States which were not Great Powers, as being contrary to the principle of equality of States”, Final Report of the Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 699.

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up. However, the founding principles of the draft convention present a certain interest in that they greatly influenced the authors of the future Statutes of the pcij and of the icj. * The Third Peace Conference, planned for 1915, could not be held. The efforts made since 1899 had not sufficed to prevent the First World War. But the unprecedented horrors of the Great War had the effect of convincing international society of the need to set up an international organization to enhance respect for international peace and security, within which a court of justice responsible for applying the law would take its place. 2

A Permanent Court of International Justice: From Arbitration to Adjudication

After the failed attempt to establish a permanent court in a strictly inter-State context, the new arrangement of international society around the League of Nations made possible the establishment of the Permanent Court of International Justice. In the spirit of peace which had rediscovered its letters patent of nobility after the Great War, international law was to play a central role in establishing peace between Nations. Members of the international society had realized that the total or partial prohibition on the use of force was indispensable, but would be illusory until it was accompanied by effective methods of peaceful settlement of disputes. Article 14 of the Covenant of the League of Nations called upon the Council “to formulate and submit to the Members of the League… plans for the establishment of a Permanent Court of International Justice”. The first ever universal permanent court, this institution was intended “to hear and determine any dispute of an international character which the parties thereto submit to it”. It would also, in accordance with the wishes of President Wilson, give “an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly [of the League of Nations]”. In order to fulfil the mission entrusted to it by Article 14 of the Covenant, the Council of the League of Nations set up a Committee of Jurists with the task, under the presidency of Baron Descamps (Belgium), to prepare a preliminary draft Statute of the Permanent Court of International Justice. This preliminary draft was drawn up in July 1920, then considered and revised by the Council of the League of Nations in August and October 1920. After it had been submitted to the League of Nations Assembly, the latter made a few additional

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­ odifications and unanimously adopted it on 13 December 1920. The Statute m entered into force on 1 September 1921. Four main features of the newly established permanent Court have to be recalled, which characterized the shift from a system of arbitration to a genuine process of adjudication at the international level: (a) the general mission entrusted to the Court, (b) the composition of the Court, (c) the jurisdiction conferred to this Court, and (d) the law it would apply. Although the distinction drawn between arbitration and adjudication (or between arbitration and judicial settlement) has been anchored in a number of treaties and constitutions of international organizations (the most wellknown example being Article 33 of the un Charter), one should not lose sight of the fact that there is some crossover between the two procedures. Notwithstanding the general considerations and objectives pursued by establishing a permanent judicial institution, the judicial settlement of international disputes involves several rules and procedures drawn from arbitral practice. The main traits of the pcij cannot be strictly equated with, and are not fully similar to, those of the courts of justice as they are known in national systems, as will now be shown. “[T]he Permanent Court will not be a Court of arbitration, but a Court of Justice”22 Of course, “the Statute of the pcij was anchored in the past”,23 but, as was made clear in Article 1, “This Court [was to] be in addition to the Court of Arbitration organized by the Conventions of The Hague of 1899 and 1907, and to the special Tribunals of Arbitration to which States [were] always at liberty to submit their disputes for settlement”. Reference has already been made to the criticisms of the system of arbitration pre-dating the First World War. According to the 1920 Committee of Jurists, the establishment of the pcij was meant to obviate the shortcomings of arbitration. A “Court of Justice” properly so-called had to fulfil a different mission, and to assume a unique position as such. Side by side with the Court of Arbitration, the new Court was expected to exist as a judicial institution

(a)

22 23

L. Bourgeois, opening speech, 16 June 1920, Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 7. O. Spiermann, “Historical Introduction”, in A. Zimmermann, C. Tomuschat, K. OellersFrahm, C. Tams (eds.), The Statute of the International Court of Justice. A Commentary, Oxford: Oxford University Press, 2nd ed., 2012, p. 49.

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which would assume, in relation to the pca, “a quite distinct character and a complementary position”.24 The aim was to “really introduce the procedure, forms and guarantees of national law into international Justice”.25 Thus, the establishment of a “Court of Justice” was theoretically intended to distinguish it from arbitration in three respects, namely in that, in the context of the latter: – the nomination of arbitrators is left with the parties concerned, while the judges forming a permanent court retain their seat from one case to another; – the parties may select the principles and rules on which the arbitral tribunal should base its findings while a court of justice is bound to apply the law in accordance with its statute; and – the submission of a dispute to the Arbitral Tribunal’s jurisdiction has a voluntary and ad hoc character, while a permanent court of justice may entail some, or all, elements of a compulsory jurisdiction. It was felt that the institution of a “permanent court of justice”, as planned by the drafters of the Leagues of Nations’ Covenant, should be taken as meaning that the new court would be “accessible at all times” and “applying the law”.26 Only such a court should succeed in “forming a series of precedents”27 and possibly develop a body of international law: The Court of International Justice, being composed of judges, permanently associated with each other in the same work, and… retaining their seats from one case to another, can develop a continuous tradition, and assure the harmonious and logical development of International Law.28

24 25 26

27

28

Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 694. The Committee of Jurists referred in those terms to the proposal made in the First AngloAmerican plan for a League of Nations, ibid. “Note on the nature of the new Permanent Court of International Justice”, Memorandum by the League’s Secretariat, 1920, in League of Nations, Documents presented to the Committee Relating to Existing Plans for the Establishment of a Permanent Court of International Justice, p. 113. Responding to the criticisms directed against the pca, and “so as to fill (by equity) the gaps in actual (statute) law”, “Note on the nature of the new Permanent Court of International Justice”, ibid. Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 695.

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Moreover, this method would have practical advantages over arbitration: The sentences of a Court composed of professional judges would have a judicial character, they would create precedent and make for progress in International Law. They would be binding, not only upon the contesting parties, but also upon all States taking part in the creation of the Court; they would also be speedy, and, last but not least, they would be inexpensive, and justice, if it is to be popular, must be cheap.29 (b) The Gordian Knot of the Appointment of Judges As already mentioned, one of the reasons for the failure of the first attempt, in 1907, to establish a truly international court was that no agreement could be reached on the method of selecting the members who would form the court. The Great Powers were highly reluctant to see the birth of a permanent court without one of their nationals on the Bench. It had been argued that their inclusion on the Bench would increase respect for its judgments, which could not be implemented without the all-important support of military, economic and financial powers. The medium-sized and small States opposed such a privilege, on the basis of the principle of the sovereign equality of States. As was made clear in 1920, “in order to be a really international tribunal, [the future Court] must be open to all States in the world. If it is to be accepted by all the States in the world, it must inspire their confidence by offering them judges whom they have helped to select”.30 The discussions held by the Committee of Jurists showed that this issue was still very sensitive in 1920. According to one proposal, made by the Committee’s President (Baron Descamps), the selection of judges should be left to the Permanent Court of Arbitration, thereby respecting “the susceptibilities of States regarding their equality, since all, having equal rights in the appointment of judges to the Court of Arbitration, would have been equally represented in the great electoral body, in which the arbitrators, again on a footing of equality, would have carried out the election of the judges”.31 Furthermore, “the arbitrators themselves, chosen for their high moral character, their scientific knowledge and their experience in international affairs, and therefore possessing all the qualities required for good international judges, would have been eminently able to recognize these qualities in others”.32 These ­arbitrators (or

29 30 31 32

tmc Asser, at the Hague Conference of 1907, Actes et Documents, Vol. ii, p. 235. Procès-verbaux of the Proceedings of the ­Committee, op cit., note 18, p. 699. Ibid., p. 702. Idem.

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the delegate elected among them in each national group), “should also choose the Judges of the pcij, in conformity with the obligation already laid down in the plan of the 1907 Conference, to include in [their] choice judges representing the principal judicial systems of the world such as these systems are in practice….”33 This proposal was opposed for various reasons, one being that it would not be correct to establish an affiliating relationship between the new Court and the (old) Permanent Court of Arbitration.34 It was therefore suggested that, as the Court was to be a component part of the League, it must originate from an organization within the League and not from a body outside it. There were two different bodies in the League of Nations, with two different compositions: the Assembly and the Council. In the former, all nations within the League were represented, while in the latter only certain nations were represented, by a special privilege, permanent in the case of the Great Powers. The duty of carrying out the elections had therefore to fall to these two bodies simultaneously. Moreover, the pcij draft Statute laid down, in its Article 4, that the judges would be elected by the League of Nations Assembly and Council from a list of persons presented by the national groups in the Court of Arbitration. J.B. Scott explained as follows the system adopted in the draft Statute: In the Council the five great Powers are permanently represented, while all the other members of the League are represented by four elective members. The five, therefore, have a majority of one. In the Assembly each Power has one vote (…). The smaller Powers are therefore in the majority. The interests of the great Powers are represented in the Council; the interests of the smaller Powers are represented in the Assembly. Mr. Root, therefore, proposed that the judges should be selected by the concurrent action of the Council and the Assembly. In this way the interests of the great and the smaller Powers would be safeguarded and each body would have a veto upon the abuse of authority by the other. A failure to agree is to be met by a conference committee to consist of an equal number of members chosen by the Council and Assembly, as is the practice of the Senate and House of Representatives of the United States. The list of judges is to be selected by the members of the Permanent Court of Arbitration, each national group proposing two candidates without regard to nationality. From these persons the Council and Assembly are to elect. 33 34

Ibid., p. 111 (Descamps). Ibid., p. 703 and p. 148 (de Lapradelle). Among other reasons: membership of the pca and of the League of Nations were not identical; States would only participate indirectly in the selection of members of the Court.

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The details, the result of much discussion and the contribution of various members, are stated in Articles 4, 5, 6, 7, 8, 9, 10, 11, 12 of the Project.35 This compromise solution between the two systems previously proposed made possible the successful establishment of the pcij. This system is still used now, mutatis mutandis, for the election of the judges of the icj. Two other aspects relating to the selection of the Members of the Court are worth mentioning here. First, the judges were to be “elected regardless of their nationality”, i.e., in an individual capacity, and “in the sense that no nationality is of right to be represented in the court”.36 The Statute of the pcij also provided that it should be composed “from amongst persons of high moral character, who possess the qualifications required, in their respective countries, for appointment to the highest judicial offices, or are jurisconsults of recognized ability in international law” (Art. 2). These provisions were modelled on those already present in the Hague Conventions regarding the individual qualifications required from the arbitrators designated as Members of the Permanent Court of Arbitration.37 Secondly, a specific requirement related to the collective representation by the Members of the Court “of the main forms of civilization and of the principal legal systems of the world” (Art. 9). Inspired by a provision in the draft Convention establishing the Court of Arbitral Justice in 1907,38 this clause, with the additional reference to the “representation of the main forms of civilization”, was said to be “an essential condition if the Permanent Court of International Justice is to be a real World Court for the Society of all Nations”.39 The necessity of ensuring full representation of the “principal legal systems of the world”, became the topic of specific discussions, resulting, in 1920, in the formal acknowledgment of the additional requirement of representation, within the Court, of the “main forms of civilization”. This addition was the result of a suggestion by the North American and British members of the Committee of Jurists. The reference to the “main forms of civilization” went beyond the aim of mere representation of the “principal legal systems of the world”, and was explained by the Committee of Jurists as follows:

35 36 37 38 39

J.B. Scott, “A Permanent Court of International Justice”, a.j.i.l., Vol. 14 (1920), p. 583. Idem. Arts. 23 (1899) and 44 (1907). See also Art. 2 of the Statute of the Court of Arbitral Justice. See Art. 1 of the Statute of the Court of Arbitral Justice, which mentioned only the representation of the principal legal systems of the world. Procès-verbaux of the Proceedings of the Committee, op cit., note 18, pp. 709–710.

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The Committee in using these words ‘principal legal systems’ had no intention of referring to the various systems of International Law…[N] o matter what the main national tendencies in International Law may be, the meaning of the expression adopted by the Committee is not and cannot be to maintain existing distinctions between various conceptions of International Law, for such an intention would be opposed to the guiding principle upon which the establishment of a single Court of Justice for all nations is based: that is to say, the principle of the unity and universality of International Law. The Committee, in expressly recommending that the principal legal systems should be represented, had in mind, not that there were distinct systems of International Law, the national or continental tendencies of which must be considered, but that there were distinct systems of legal education, which is a very different consideration. Judges in England and the United States do not act in the same way as judges in other countries: the former attach more importance to precedent, the latter to logical deduction and to the logical sequence of interferences from authorities and principles. The intention is to try and ensure that, no matter what points of national law may be involved in an international suit, all shall be equally comprehended; and further, since it is always possible to appoint a judge ad hoc, chosen by any party which does not already possess one of its nationality, whenever a particular legal system is involved in a case, to enable the other systems of law to be brought into line with it, so that the Bench may really and permanently represent the legal conceptions of all nations. It was not enough therefore, to recommend the representation of the great legal systems of the world; the various forms of civilization must also be represented. This is an essential condition, if the Permanent Court of International Justice is to be a real World Court for the Society of all Nations.40 The reference to the “main forms of civilization” in Article 9 of the Statute may be considered as postulating “political criteria in the distribution of seats in the Court”.41 It may indeed recall the requirement of an “equitable geographical representation” in the Court’s composition similar to the one frequently applicable to political organs. However, Article 9 does not purport to ensure a geographical representation as such.42 It fulfils an important and substantial 40 41 42

Ibid., p. 710. S. Rosenne, The Law and Practice of the International Court, Martinus Nijhoff Publishers, Leiden/Boston, 2006, Vol. i, p. 360. The amendments to draft Article 9, proposed by Colombia, requiring a “geographical” rep­ resentation on the Bench were rejected by the Assembly of the League. See Stauffenberg,

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role in light of the universal function entrusted to the Court. For example, the diversified and balanced composition of the Court is of utmost importance when the Court is called upon to identify general principles of law, in accordance with Article 38, paragraph 1 (c), of the Statute.43 In fact, the idea of an “equitable geographical representation” in the Court’s composition has always been ensured to the extent possible. It has naturally evolved in parallel with the progressive universalization of the composition of the international community (both in the days of the League of Nations44 and later in the era of the United Nations). However, the fact clearly remains that the actual implementation of a concept such as that of “civilization”, and the distinctions between its various “forms”, is open to very subjective assessment, as demonstrated by the prevalence of the colonialist understanding of the “civilized nations” until the twentieth century,45 or it may ultimately be a matter of sociology,46 rather than legal definition. In the words of one former judge: “To reconcile Article 9 with a modern view of civilization, the text should be interpreted under the circumstances of its application…”.47

43

44

45 46

47

Statut et Règlement de la Cour permanente de justice internationale. Eléments d’interprétation, Carl Heymans Verlag, Berlin, 1934, pp. 41–42. The fear was expressed that the formula would be either impracticable or too rigid, and it was thought that the application of this principle in the case of the Court should be abandoned. Ibid., pp. 86–87. See the separate opinions of Judges Azevedo (i.c.j. Reports 1949, p. 174), Amoun (i.c.j. Reports 1969, p. 139 and i.c.j. Reports 1970, p. 317) and Weeramantry (i.c.j. Reports 1993, p. 273), referred to also in S. Rosenne, The Law and Practice of the International Court, op cit. note 41. On the occasion of the renewal of the pcij, Latin American States claimed a representation proportional to that they benefited from in the composition of the Council. The results of the 1930 elections actually led to an increase in the judges from Latin America, from two to three. See M. Hudson, The Permanent Court of International Justice, 1920–1942, op cit., note 6, p. 251. The composition of the pcij reflected the predominantly “European” nature of the international community prevailing at the time. A majority of judges were from European countries, while China, the United States and Japan were the only States, outside Latin America, having a judge of their nationality on the Bench throughout the period of activity of the pcij. Y. Ben Achour, Le rôle des civilisations dans le système international (droit et relations internationales), Pedone, Paris, pp. 2–3. H. Mosler, “To What Extent Does the Variety of Legal Systems of the World Influence the Application of the General Principles of Law Within the Meaning of Article 38 (1) (c) of the Statute of the International Court of Justice”, in International Law and the Grotian Heritage, The Hague, t.m.c. Asser Institute, 1985, pp. 182–183. A. Koroma, “International Law and Multiculturalism”, in Multiculturalism and International Law. Essays in Honour of Edward Mc Whinney, S. Yee, J.-Y. Morin, (eds.), Martinus

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* The Statute of the pcij was successful in providing for a truly “international” composition of the Court, although it retained an essentially “European” character, given the predominance of this region of the world in the composition of the League of Nations. The Court’s legitimacy as a genuine “World Court” would, however, much depend on the capacity of the method adopted for selecting the judges to ensure respect of the criteria for election set out in the Statute (and in particular in Article 9 thereof). In some aspects, the Court’s composition retained elements drawn from fundamental principles of arbitration. The most well-known example is the possibility offered to States parties to cases before the Court to nominate judges ad hoc. As was explained in the 1920 Committee of Jurists, when States do so, the Court “more nearly resembles a Court of Arbitration[, where the parties select their arbitrators,] than a national Court of Justice”. “But this variation [was felt] necessary. Though [the] Court [was] a true Court, [it was recalled] that it [was] a Court between States”, and that “States attach much importance to having one of their subjects on the Bench when they appear before a Court of Justice”.48 While one possibility would have been that judges of the nationality of the parties abstain from sitting in the case (which, however, would have been inconsistent with the principle that they are elected regardless of their nationality, sit in an individual capacity and have taken an oath to exercise their duties impartially), it was decided, rather, that any State not having a judge of its nationality sitting on a permanent basis on the Bench should have the liberty to choose a judge (of its nationality, or of any other nationality, as from 1931) for the case to which it was party. This possibility was not only aimed at ensuring equality between the parties to a case before the Court. The drafters of the pcij’s Statute found that “it [was] highly desirable that the judges [of the nationality of the parties] should be able up to the last minute during the deliberations to put forward and explain the statements and arguments of the States, and to ensure that the sentence, however painful it may be in substance, should be drawn up so as to avoid ruffling national susceptibilities”.49

48 49

Nijhoff Publishers, Leiden/Boston, 2009, pp. 86–87. See also, C.H. Weeramantry, “Cultural and Ideological Pluralism in Public International Law”, in Liber Amicorum Judge Shigeru Oda, 2002, Vol. 2, pp. 1491 et seq. (re-pub. in C.H. Weeramantry, Universalising International Law, Nijhoff, 2004, pp. 1–31). Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 722. Ibid.

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The institution of the judge ad hoc, which was maintained in the Statute of the icj, has not always received unanimous support. However, the Inter-Allied Committee of 1943–1944 (which authored the first draft of the un Charter and the Court’s Statute), like the Advisory Committee of Jurists in 1920, considered that countries would not in fact feel full confidence in the decision of the Court in a case in which they are concerned if the Court includes no judge of their own nationality. And today, many writers take the view that it is useful for the Court to be able to count on the participation in its deliberations of a person more familiar with the views of one of the parties than the permanent Members of the Court might sometimes be. (c) The Compulsory Jurisdiction of the Court The permanent character of a Court of Justice should theoretically play a significant role in the effective settlement of disputes, as compared with arbitration. Indeed, “a characteristic feature of [a] Permanent Court of International Justice is that parties shall have direct access to it”, whereas “[even] when the jurisdiction of the Permanent Court of Arbitration has been accepted it still remains to arrange, by a special agreement—a ‘compromis’—which of the arbitrators… are to sit in the particular case”.50 A truly compulsory jurisdiction, however, could not be established at the time when the Statute of the pcij was adopted. The principle had nonetheless been proposed by the 1920 Committee of Jurists, which considered that, by instituting the Court, and by adhering to its Statute, States could confer jurisdiction upon the Court to settle legal disputes, without the need for the parties to the case to conclude a special agreement to that effect.51 That approach was initially seen by several governments as being in contradiction with various provisions of the Covenant (and in particular Articles 12 and 13 thereof52). It was essentially on account of its inconsistency with those provisions that it was rejected by the political organs of the League of Nations.

50 51 52



Ibid., p. 698. Ibid., pp. 727 et seq. Art. 12 read as follows: “The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.” Art. 13 provided:

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The Statute of the Court nonetheless introduced a major innovation by offering the possibility of bringing a case before the Court by means of an unilateral application, should both States have made a previous declaration indicating their acceptance of the jurisdiction of the Court (the so-called “optional clause” system). This compromise, proposed by the Brazilian delegate to the League’s Assembly (Raoul Fernandes), would remain untouched, despite further discussion, when the icj’s Statute was adopted.53 (d) “A court of international law”: The Applicable Law One of the most striking developments resulting from the establishment of the pcij has been the general definition, in the Court’s Statute, of the rules of international law to be applied by the Court in deciding the disputes submitted to it.54 Article 38, paragraph 1, of the pcij’s Statute did not simply represent a provision addressed to the Court itself. It has been widely accepted as a general formulation of the main “formal” sources of international law—even if this may not be an exhaustive statement of the foundations on which the Court can construct its decisions or of the different ways through which rights and obligations may be created in international law (as, for example, through unilateral acts of States and binding decisions of international organizations).55 This celebrated provision reads as follows:

53 54

55

“The Members of the League agree that whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to ­arbitration. Disputes as to the interpretation of a treaty, as to any question of ­international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration. For the consideration of any such dispute the court of arbitration to which the case is referred shall be the court agreed on by the parties to the dispute or stipulated in any convention existing between them”. The issue of the Court’s jurisdiction will be addressed in greater detail under Chapter 2, infra. It should be recalled that, as a matter of principle, the Advisory Committee’s task was not to establish the actual rules to be applied by the judges: the mandate of the Committee “was to organize the Court and not to make laws for it”, Procès-verbaux of the Proceedings of the Committee, op cit. note 18, p. 293 (Root). On the authority of Art. 38 (reproduced in a number of arbitration treaties, or even directly referred to (General Act on Pacific Settlement of International Disputes)), see, for example, A. Pellet, “Article 38”, in A. Zimmermann, C. Tomuschat, K. Oellers-Frahm, C. Tams, (eds.), The Statute of the International Court of Justice. A Commentary, op cit. note 23, pp. 745–746.

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The Court[,whose function is to decide in accordance with international law such disputes as are submitted to it,]56 shall apply: (a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) International custom as evidence of a general practice accepted as law; (c) The general principles of law recognized by civilized nations; (d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Such an enumeration constituted a novelty in comparison with “the very summary fashion in which the Hague Conventions referred to the applicable law”.57 The only precedent was to be found in the 1907 Convention (xii) relative to the Creation of an International Prize Court, Article 7 of which provided: If a question of law to be decided is covered by a treaty in force between the belligerent captor and a Power which is itself or whose subject or citizen is a party to the proceedings, the Court is governed by the provisions in the said treaty. In the absence of such provisions, the Court shall apply the rules of international law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity. With regard to those “general principles of justice and equity”, the Committee of Jurists was very much aware of the fact that one of the reasons that the International Prize Court had never come into being was that the applicable law had been too vaguely defined. A majority of its members felt that there could be “no question of giving such an unrestricted field to the decisions of the Court” through an unqualified reference to “general principles of 56

57

The words in square brackets were added in the icj’s Statute in 1945, further to a proposal by Chile: “The lacuna in the old Statute with reference to this point did not prevent the Permanent Court of International Justice from regarding itself as an organ of ­international law; but the addition will accentuate the character of the new Court”, u.n.c.i.o., Vol. 13, p. 392. A. Pellet, “Article 38”, op cit., note 55, pp. 735–736. According to Art. 37 of the 1907 Hague Convention “[i]nternational arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law”. While, in Art. 48 of the 1899 Convention, reference was made to the application of the “principles of international law”, the corresponding article in the 1907 Convention only mentioned the “principles of law” (Art. 73).

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justice and equity”.58 On the other hand, to confine the Court to applying only ­international conventions or international custom would have been to run the risk that it would face situations where it could not settle the dispute, should it be unable to find existing rules “expressly recognized” by States in a convention, or “accepted” as a matter of customary international law.59 For some members of the Committee, however, not giving the Court the power to decide on the basis of equity need not result in a non liquet. According to Mr. Root, the possibility would have remained for the Court to declare its lack of jurisdiction, or to limit itself to issuing non-binding recommendations for the settlement of the dispute.60 For his part, Mr. Ricci-Busati expressed the following opinion: “by declaring the absence of a positive rule of international law, in other words [of] an international limitation on the freedom of the parties, nevertheless a legal situation is established. That which is not forbidden is allowed; that is one of the general principles of law which the Court shall have to apply”.61 Other members, on the contrary, highlighted the merits of recourse to equity. Some of them referred to equity as a corrective instrument enabling the Court to fulfil its function.62 For other members, the Court should have been allowed to fill the possible “gaps” or lacunae in international law by having recourse to equity, but with the important condition that the parties to the dispute should have accepted this.63 Ultimately, the middle course chosen by the Advisory Committee of Jurists avoided both the possibility of a non liquet and the recognition of an unlimited power on the part of the Court to “legislate”, or at least to decide a case on the basis of purely subjective conceptions of the principles of justice or equity. The 58 Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 729. 59 See ibid., Hagerup, pp. 296, 317; Loder, pp. 311–312; Lapradelle, p. 312; Descamps, p. 320. 60 Ibid., pp. 309–310. 61 Ibid., p. 314. 62 Ibid., (Lapradelle), p. 296: “It was necessary to give parties an assurance that the Court would concern itself only with the application of law, to administer justice, and would not succumb to a temptation to deal with diplomacy…However it would be too strict and even unjust to force the Court to consider only law. There would be no danger in allowing the Court to consider whether any particular legal solution were just and equitable, and if necessary, to modify, if the situation arose, the legal solution according to the exigencies of justice and equity”. Reference has been made to equity, as a corrective instrument inherent to the function of administering justice on the basis of law, i.e., in a sense of equity infra or praeter legem, in the case law of the Court. See Frontier Dispute, Judgment, i.c.j. Reports 1986, p. 554; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, p. 13. 63 Procès-verbaux of the Proceedings of the Committee, op cit., note 18, Hagerup, pp. 296–297.

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reference to the “general principles of law recognized by civilized nations” implied that the Court would still be able to perform its judicial function when no specific rules deriving from treaty or custom exist, thus avoiding a non liquet, but also that it would not render justice at the expense of the legal security and predictability which a court owes to litigants, and that it would still apply international law by having recourse to the said general principles. Thus the formulation eventually adopted in the Statute of the pcij, and subsequently of the icj, reflects the requirement that these principles are not to be “created” or invented by the Court out of abstract considerations of justice and equity, but have to be identified by it as principles which are widely “recognized by civilized nations”. A vast number of different categories and qualifications of such principles have been put forward by scholars, in inverse proportion to the number of cases where the Court (both old and new) has actually had to apply a general principle of law in accordance with Article 38, paragraph 1 (c), of the Statute.64 Nevertheless, it is widely accepted that one of the conditions that have to be fulfilled for a principle to be elevated to the status of a general principle of law in the sense of Article 38, paragraph 1 (c), is that such principle be recognized, on a very wide (if not universal) scale, in the municipal orders of States, and be capable of being transposed at the international level and applied to legal relationships between sovereign States.65 Two additional remarks can be made regarding the drafting and adoption of Article 38 of the Statute. First, the Sub-Commission of the Assembly of the League of Nations decided that a provision should be added to the draft Statute proposed by the Advisory Committee of Jurists, to the effect that the list of formal sources in Article 38 “shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”.66 Secondly, while the Advisory Committee had established a hierarchy between the different sources of law enumerated in its draft Statute, that hierarchy was removed by the Sub-Commission of the Assembly.67 The Court is thus not bound to look first to, and apply, international conventions, then secondly, 64 65

66 67

See the relevant case-law cited in A. Pellet, “Article 38”, op cit. note 55, pp. 834–841. See for example, Procès-verbaux of the Proceedings of the Committee, op cit., note 18, p. 335 (Lord Phillimore); Separate opinion of Judge Amoun, North Sea Continental Shelf, i.c.j. Reports 1969, 139–140, para. 38; Separate Opinion of Judge Fitzmaurice, Barcelona Traction (2nd phase), Judgment, i.c.j. Reports 1970, p. 66, para. 5. Art. 38, para. 2, of the Statute. The Sub-Commission found that the insertion of the phrase “in the following order” (“en ordre successif”) would serve no purpose. See Stauffenberg, op cit. note 42, p. 280.

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in the absence general or special conventions, international custom, and thirdly the general principles of law recognized by civilized nations. That said, it may be considered that such a sequence would generally constitute the natural approach taken by the parties and the Court in practice when determining the rules applicable to a particular dispute.68 3

Brief Overview of the Work and Achievements of the pcij (1922–1946)69

The creation of the pcij gave substance to hopes—hitherto unfulfilled or dashed—of establishing a new method of judicial settlement of disputes between States: one that was available on a permanent basis and, in principle, open to all States. However, the Permanent Court’s contribution to the history of international justice was not confined to being just one—albeit key—step in a long process, the culmination of which is today’s icj. The specific role played by the pcij in its time was remarkable in many respects. It must be remembered that the international community in 1920 was still relatively closed and homogenous. The content of the rule of law was little disputed and, moreover, States shared the same conception of the judicial function. These combined elements created a favourable climate for the development of the judicial settlement of international disputes. International law was at the heart of the territorial reconfiguration effected in the post-war peace treaties. The 1919 peace treaties had linked the maintenance of peace to the judicial settlement of the problems created by the First World War. The Permanent Court was one of the major elements in the new mechanism. The pcij was thus entrusted with a specific task in addition to its general jurisdiction. It was often requested to consider questions relating to the transfer of territories carried out under the peace treaties, most of which concerned the direct or indirect consequences of such transfers on the p ­ roperty 68

69

Some members of the Committee argued that the various sources should be applied in a prescribed order. See: Procès-verbaux of the Proceedings of the Committee, op cit. note 18, Ricci-Busatti, pp. 332, 337; Lord Phillimore, pp. 337–338 and Hagerup, p. 338. This section is partly taken over from Ph. Couvreur, “1922–2012: The Legacy of the Permanent Court of International Justice”, in The Permanent Court of International Justice: Its Constitution and Work, The Hague, 2012, pp. 228–241. See also, by the same author, “Regards sur la Cour permanente de Justice internationale” in The Global Community. Yearbook of International Law and Jurisprudence Global Trends: Law, Policy & Justice Essays in Honour of Professor Giuliana Ziccardi Capaldo, New York: Oxford University Press usa, 2013, pp. 101–115.

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of individuals and the rights of national minorities. This important task accounted for nearly half of the cases dealt by the Permanent Court, namely 14 cases out of a total of 29, and more than half of the advisory opinions, namely 19 opinions out of 27. Although it was not called upon to deal with the most serious international crises affecting the League of Nations, the pcij, within the limits set by its role as a judicial institution, had an important and valuable part to play in this first attempt to create a universal political organization. Although it was not an organ of the League, the Permanent Court always maintained very close operational links with it, exemplified in particular by the importance of its advisory role, with almost as many procedures of this kind submitted to it as contentious cases. In comparison, the advisory role of the icj has to date accounted for only about 20 per cent of the total number of cases referred to it. It should, moreover, be emphasized that the history of the pcij generally reflected a marked enthusiasm on the part of States for judicial settlement of their disputes. Thus, at the end of the first decade of the Permanent Court’s existence, hundreds of treaties had been concluded, giving the Court jurisdiction, subject to certain conditions, to settle disputes arising out of those treaties. And in 1932, of the 55 Member States of the League of Nations or signatories of the Court’s Statute, 45 were bound by a declaration accepting the compulsory jurisdiction of the pcij. By comparison, to date only 72 Member States of the United Nations out of 193 have made such a declaration. Furthermore, the decisions of the pcij, whether in the form of final binding judgments, or of advisory opinions, were very largely implemented and complied with in practice. It is true that political developments in the 1930s struck at the ideals of peace and justice which informed the activities of the Permanent Court. During that time there was a relative decline in its judicial activity compared with its early years. Finally, the outbreak of the Second World War forced the Court to move to Geneva and effectively to suspend its activities after May 1940. In October 1945, the pcij held its last session, at which it decided to take all necessary measures for the transfer of its archives and assets to the new icj, which would also be based at the Peace Palace. On 31 January 1946, all of the pcij judges who had not already done so resigned and, on 6 February 1946, the United Nations Security Council and General Assembly elected the new Members of the icj. In April 1946, the pcij was formally dissolved and the icj, meeting for the first time, elected as its first President the last President of its predecessor. The Court established its Registry, largely composed of former officials of the pcij, and held an inaugural public sitting on the eighteenth of the same month; and the enterprise which had commenced in 1922 was then taken over by the principal judicial organ of the United Nations.

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Although the pcij was fully operational for only 18 of the 24 years of its existence (1922–1940), and despite an increasingly unstable political context, it was able to demonstrate the value of judicial settlement for resolving international disputes, alongside the other—arbitral and diplomatic—methods. Consequently, for the founding fathers of the United Nations, the principle of maintaining a permanent international court gave rise to little discussion. In practice, the decision ultimately to establish a new Court and to dissolve the pcij was clearly governed by the political requirements of the time. On the whole, however, the desire to ensure continuity between the two Courts at The Hague prevailed over the historical and legal break that the establishment of the United Nations represented. The Statute of the icj was thus based upon that of the former Permanent Court and, in an innovative step, annexed to the United Nations Charter (Art. 92 of the Charter). In particular, the solution adopted in 1920 regarding the composition of the Court and the method of electing its Members was retained without modification in 1945. Practice had shown that, under the pcij Statute, the chosen system, while not perfect, tended to ensure the representativeness and universality of the Court as a whole, while at the same time ensuring the election to it of judges of high moral character and possessing the most distinguished qualifications (Arts. 2, 4 and 9 of the Statute). Furthermore, despite discussions on the extent of the powers to be accorded to the new institution and on whether to grant it general compulsory jurisdiction, the role and functions of the icj were ultimately based on the main provisions adopted in that regard in 1920. * The establishment of the icj, which reflected the trust inspired by the pcij in its time, thus enabled the work of its predecessor to be consolidated and further developed in a spirit of continuity. From the icj’s first decision (Corfu Channel) to its most recent judgments and advisory opinions, the current Court has always referred to the jurisprudence of the pcij as a component of its own jurisprudence. In that regard, many of the cases decided by the Permanent Court are notable for having laid down principles and rules relating to some of the most fundamental issues of international law. In particular, the pcij decisions concerning the sources of the rights and obligations of States (Lotus; Legal Status of Eastern Greenland), the interpretation of international obligations and treaties and the terms of implementation of the responsibility of States and its consequences (s.s. “Wimbledon”; Factory at Chorzów; Mavrommatis Palestine Concessions) thus helped to confirm and consolidate

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i­nternational law in areas of great importance. The foundations laid in those areas by the Permanent Court undoubtedly fulfilled the hopes invested in the institution of a permanent court with general jurisdiction and universal vocation, a court that was better placed than the arbitral tribunals had been previously to ensure the construction of a consistent jurisprudence. On a more practical, but not less important, level, the Permanent Court developed procedural rules and a judicial practice most suited to the procedure before an international tribunal and most in conformity with the fundamental principles of international law. The Rules which the Court drafted and adopted in 1922, and amended or revised in 1926, 1927, 1931, and 1936, formed the basis of the Rules adopted by the Court in 1946. Thus the procedure applicable before the Court is still to date, to a large extent, the product of the early work of the Permanent Court. While criticism is sometimes expressed concerning certain aspects of the Permanent Court’s procedure, in particular the contention that it is not suited to the modern needs and realities of the 21st century, it should be recalled that the Permanent Court showed remarkable efficiency in performing its judicial functions, in part thanks to the very flexible working methods it had adopted, and with the co-operation of the States parties to the cases, at a time which did not enjoy today’s communications and technical facilities. The average length of proceedings on the merits, from the filing of the act instituting proceedings until the delivery of the final judgment, was between 12 and 18 months. Procedural time-limits were particularly short, averaging a month-and-a-half for the filing of each written pleading by the parties, yet without affecting the quality of the pleadings. Moreover, the interval before the start of the oral hearings was very short, generally just a few weeks after the close of the written proceedings; counsel and lawyers addressed the Court without any written text, and the time for the preparation of replies was very short. The Permanent Court was thus able to fulfil its mission extremely effectively, handing down an average of three to four judgments or advisory opinions per year. Select Bibliography Y. Daudet (ed.), Topicality of the 1907 Hague Conference, the Second Peace Conference, Martinus Nijhoff, 2008, 490 p. M. Hudson, The Permanent Court of International Justice, 1920–1942, (1943), reed. Garland Publishing, New York and London, 1973, 835 p. N. Politis, La justice internationale, Hachette, Paris, 1924, 325 p.

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S. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration. Acts and Document, T.M.C. Asser Press, The Hague, 2001, 488 p. B. Schenk von Stauffenberg, Statut et Règlement de la Cour permanente de Justice Internationale. Éléments d’interprétation, Berlin, Heymann, 1934, 498 p. J.B. Scott, The Hague Peace Conferences of 1899 and 1907, 2 Vol., John Hopkins Press, Baltimore, 1909, 572 p. The Permanent Court of International Justice: its Constitution and Work, Trilingual book (English, Spanish, French), first published in 1939, republished in 2012 [available at http://www.icj-cij.org/pcij/serie_other/cpji-pcij.pdf]. The publications of the PCIJ ( Judgments, Advisory Opinions and Orders; Pleadings; Annual Reports), as well as all the “travaux préparatoires” of the Statute and of the Rules of Court, are available on the ICJ’s website at : www.icj-cij.org (under the green tab entitled “The Permanent Court of International Justice”).

chapter 2

The Basis and Scope of the Court’s Judicial Function 1

A System of Consensual Jurisdiction: The Contentious Jurisdiction

The Court’s contentious jurisdiction is based on the consent of the States parties to a dispute. This basic rule, reflected in Article 36 of the Statute of the Court, is a corollary of the sovereign equality of States. This latter principle not only lies at the very heart of the United Nations Charter, but also, more generally, still underpins the current international legal order. As already explained, the establishment of a permanent court served different purposes by comparison with voluntary arbitration, and could be seen as an important step towards the future establishment of a truly comprehensive system of compulsory jurisdiction at the international level. Legally speaking, the permanent character of the Court entails important consequences when assessing the consensual nature of its jurisdiction: – first, the Court’s existence does not rest upon the will and consent of the States parties to a particular dispute. In that sense, the Court stated that it “is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations”.1 For that reason, some aspects of its jurisdiction may never be derogated from by the parties to a particular case, namely those concerning jurisdiction ratione personae (or jus standi before the Court). – secondly, the accessibility at all times to a permanent international court provides for a form of compulsory jurisdiction—to the extent that this has been accepted by States prior to any dispute—and enables them to submit disputes to the Court unilaterally. In such cases it is for the Court to determine the reality and existence of the consent given by the States parties to the dispute, in order to establish its jurisdiction ratione materiae.

1 Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, i.c.j. Reports 1953, p. 119. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004328860_004

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(a) Jurisdiction ratione personae “Only States may be parties in cases before the Court.” The principle was first laid down in the Statute of the pcij (Art. 34), in 1920, and underwent no substantial modification in the Statute of the icj as adopted in 1945 (Art. 34 (1)).2 In 1920, when the Statute of the Permanent Court of International Justice was drafted, States constituted the only effective subjects of the international legal order and, consequently, the only entities that could be parties to a dispute of a legal nature at international level. That had been the point of view of the Committee of Jurists from the outset, even though Article 14 of the Covenant of the League left the question open, confining itself to providing that the Court would entertain such disputes of an international character as the “parties” might submit to it.3 At that time, the main purpose behind the adoption of Article 34 of the Statute had been to exclude individuals from becoming “parties” to a case before the Court. “The Committee was unanimously of opinion that, without prejudice to any subsequent development of the Permanent Court of International Justice, for the moment it must be given a basis which, though restricted, would, for that very reason, be firmer and more substantial”.4 This restrictive approach was not meant to exclude completely from the Court’s jurisdiction disputes concerning individual or private claims.5 However, such disputes should only be brought by a State on behalf of one of its citizens against another State, in its right of “diplomatic protection”. A State can exercise diplomatic protection in favour of one of its nationals by taking up the case, in its own name, relating to an injury the latter has suffered as a consequence of an internationally wrongful act committed by another State. This possibility was not excluded by the wording of Article 14 of the Covenant, and was frequently applied in the early practice of the pcij.6 2 The change from “can” to “may”, in 1945, was made to ensure better concordance with the French “Seuls les Etats ont qualité pour se présenter devant la Cour”, uncio, Vol. xiv, p. 666. 3 See Article 31 of the draft Statute: “The Court shall have jurisdiction to hear and determine suits between States”, Procès-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, p. 724. 4 Id., p. 723. 5 Lapradelle and Loder initially argued in favour of giving the Court a supplementary jurisdiction, at the instance of private persons, see ibid., pp. 205–206. They did not insist, since the Committee acknowledged that the protection of private individuals could be reached by a system which gave only to States access to the Court, see ibid., p. 207 et seq. 6 As explained by the Court in a famous dictum, “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 right, the right to ensure, in person of its subjects, respect for the rules of international law” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924,

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Article 34 of the Statute of the Permanent Court also gave access to contentious proceedings to those “Members” of the League of Nations that were not full States (i.e., dominions and colonies), but which were placed on the same footing as “States” in that context.7 Such wording was not reproduced in the corresponding provision of the icj’s Statute, owing to the fact that only States could be Members of the United Nations and, consequently, parties to the Statute of the new Court.8 States Entitled to Appear before the Court A second requirement as to the present Court’s jurisdiction ratione personae is set forth in Article 35 of its Statute. The matter is directly connected to the status and position of the Court as the “principal judicial organ of the United Nations” (un Charter, Art. 92): it is not only of interest for the parties to a particular dispute, but also for the Court itself, as a judicial organ, and for the Organization in the fulfilment of its goals and principles. Article 35 of the Statute draws a distinction between “States parties to the Statute” and “other States”. States parties to the Statute (Art. 35 (1) of the Statute and Art. 93 of the un Charter), comprise un Member States, which are ipso facto parties to the Statute of the Court. Although the pcij was linked in many respects to the League of Nations, its Statute was an instrument distinct from the Covenant, and adopted at a later date. It logically followed that participation in the Covenant would not automatically make a State party to the pcij’s Statute, and vice-versa. The Protocol of signature of the pcij Statute provided that it would be open not only to the Members of the League, but also to States mentioned in the annex to the Covenant (this later provision was mainly intended to address the situation of the United States, which, however, never acceded to the Protocol, or to the League of Nations). Article 35 (2) of the pcij Statute furthermore opened access to the Court, under certain conditions, even to States non-­ parties to the Statute (a similar provision exists in the icj Statute, see infra). p.c.i.j., Series A, No. 2, p. 12). Implementation of the State responsibility before the Court will form the subject of separate developments, infra Chapter 5. 7 In 1920, the text of this provision read: “Only States or Members of the League of Nations can be parties in cases before the Court.” 8 In practice, however, the real statehood/independence of some Members of the un (Byelorussia, Ukraine) was unsettled or doubtful until the dissolution of the ussr. See: R. Yakemtchouk, L’Ukraine en Droit International, Louvain, 1954; E. Dolan, “The Member-Republics of the ussr as subjects of the Law of Nations”, International and Comparative Law Quarterly; Vol. 4 (1955), p. 629.

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Contrary to the previous situation, participation in the icj Statute was directly linked to participation in the new universal organization, the un. Given that it was decided to establish the new Court as the “principal judicial organ of the United Nations” (Arts. 7 and 92), and to append its Statute to the un Charter, making it an integral part of the latter (Art. 92), no further treaty action was required for un Members to become party to the icj Statute. Article 93 (1) draws the logical consequence from this: “All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.” As un Members, these States share the expenses of the Court by contributing to the budget of the Organization (Statute, Art. 33). They are also entitled to take part in any amendment to the Statute, which shall be effected by the same procedure as is provided by the Charter for amendments to the Charter itself (Statute, Art. 69). Moreover, as already discussed, un Member States participate, as members of the competent organs of the Organization, in the election of Members of the Court. Drawing upon the corresponding provision in the pcij’s Statute, the Charter envisages the possibility for a State which is not a Member of the United Nations to become a party to the icj Statute (Art. 93 (2)). Specific conditions have to be met in order for a non-un Member to become party to the Statute of the icj. These conditions shall be determined “in each case by the General Assembly upon the recommendation of the Security Council”, and are intended to ensure complete equality between un Member States and other States parties to the icj Statute. Five non-un Member States have, in the past, asked to become parties to the Statute.9 These States later acceded to the un Charter and became, ipso facto, parties to the icj Statute as Member States. Although, in principle, the conditions of participation to the icj Statute are determined on a case-by-case basis, the relevant General Assembly resolutions followed the same pattern and required in all cases: the deposit with the Secretary-General of an instrument…containing acceptance of the provisions of the Statute of the International Court of Justice; acceptance of all the obligations of a Member of the United ­Nations under Article 94 of the Charter; [and] an undertaking to contribute to the expenses of the Court such equitable amount as the General

9 Switzerland, ga res. 91 (i); Liechtenstein, ga res. 363 (iv); Japan, ga res. 805 (viii); San Marino, ga res. 806 (viii); Nauru, ga res. 42/21.

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­ ssembly shall assess from time to time after consultation [with the State A concerned].10 In addition, Articles 4 (3) and 69 of the Statute allow States which are parties only to the Statute to participate, on an equal footing, in the election of the Members of the Court,11 as well as in the Statute’s amendment procedure.12 Although Article 93 of the Charter does not address those States, the Court may also be open to States which are not parties to the Statute, i.e. “other States” (Art. 35 (2) of the Statute). Article 35 (2) of the Statute of the icj,13 modeled on a similar provision in the pcij Statute, is based, as already explained in 1920, both on principles and existing provisions: on principles, because it is to the general interest of the peace of the world to extend the development of the international jurisdiction, and to enlarge the Court’s sphere of action; on existing provisions, because Article 17 of the Covenant itself [indicated] that the methods created by the Covenant for the settlement of disputes may be extended to apply to States which are not Members of the League.14 The Security Council laid down the conditions of access to the Court for such States in its resolution 9 (i), of 15 October 1946, which provides: 1. The International Court of Justice shall be open to a State which is not a party to the Statute of the International Court of Justice, upon the following condition, namely, that such State shall previously have deposited with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute 10

11 12 13

14

See e.g., Switzerland, ga res. 91 (i). By way of example, the contribution assessed by the General Assembly, with respect to Liechtenstein, San Marino and Switzerland, amounted to 0.04%, 0.04% and 0.86%, respectively, of the un regular budget. See also ga res. 264 (iii). See also ga res. 2520 (xxiv). “The conditions under which the Court shall be open to other States 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.” Procès-Verbaux of the Proceedings of the Committee, op cit., note 3, p. 725. This concern was expressed again in 1945, uncio, Vol. 14, p. 142.

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and Rules of the Court, and undertakes to comply in good faith with the decision or decisions of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter; 2. Such declaration may be either particular or general. A particular declaration is one accepting the jurisdiction of the Court in respect only of a particular dispute or disputes which have already arisen. A general declaration is one accepting the jurisdiction generally in respect of all disputes or of a particular class or classes of disputes which have already arisen or which may arise in the future. A State, in making such a general declaration, may, in accordance with Article 36, paragraph 2, of the Statute, recognize as compulsory, ipso facto and without special agreement the jurisdiction of the Court, provided, however, that such acceptance may not, without explicit agreement, be relied upon vis-à-vis States parties to the Statute which have made the declaration in conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice; 3. The original declarations made under the terms of this resolution shall be kept in the custody of the Registrar of the Court, in accordance with the practice of the Court, and transmitted to all States parties to the Statute of the International Court of Justice, and to such other States as shall have deposited a declaration under the terms of this resolution, and to the Secretary-General of the United Nations; 4. The Security Council reserves the right to rescind or amend this resolution by a resolution which shall be communicated to the Court, and on the receipt of such communication and to the extent determined by the new resolution, existing declarations shall cease to be effective except in regard to disputes which are already before the Court; 5. All questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court. The general conditions set out in paragraph 1 of the resolution, combined with that referred to in Article 35 (3) of the Statute, concerning the contribution by the State to the expenses of the Court,15 are the same as those laid down by the

15

In practice, the States concerned have been called upon to contribute towards the expenses of the Court only in relation to the specific cases to which they have been parties on the basis of the declaration provided for in the Security Council resolution. Their contributions therefore have been calculated on a case-by-case basis, having regard, inter alia, to the contribution to the un budget which would have been assessed, had the State party been a Member of the United Nations, the period running from the filing of the

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General Assembly for a non-un Member State which applies to become party to the Statute of the Court. The “other States” may make a “general” declaration (i.e., in respect of all disputes or of a class, or classes, of disputes) or a “special” one (i.e., “in respect only of a particular dispute or disputes which have already arisen”). While these declarations confer jurisdiction ratione personae on the Court, i.e., give access to it,  they do not in any way confer jurisdiction ratione materiae on the Court to determine a specific dispute. Another, distinct basis of jurisdiction, agreed to by all the States parties to the dispute is needed for that purpose (in most cases a compromissory clause contained in a prior treaty, or a general treaty on the judicial settlement of disputes, conferring compulsory jurisdiction to the Court). Under the resolution, even if “a State, in making…a general declaration, may, in accordance with Article 36, paragraph 2, of the Statute, recognize as compulsory, ipso facto and without special agreement, the jurisdiction of the Court”, “such acceptance may not, without explicit agreement, be relied upon vis-à-vis States parties to the Statute which have made the declaration in conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice”. This, in order to avoid “plac[ing] the parties in a position of inequality before the Court”, as required by Article 35, paragraph 2, of the Statute. To date, seven States have filed “general declarations”, which eventually lapsed after their accession to the Organization. These States were, in chronological order, Japan (1951), Ceylon (1952), Cambodia (1952), Laos (1952), Vietnam (1952), Finland (three separate declarations, two in 1953 and one in 1954) and the Federal Republic of Germany (six separate declarations, registered, respectively, in 1955, 1956, 1961, 1965, 1971 and 1973). The declarations made by Ceylon, Cambodia and Laos did not contain the commitments prescribed by the first paragraph of the 1946 resolution; they were duly distributed by the Registrar to the other States referred to in paragraph 3 of the resolution, but the Court never had to address the question of their validity. The Federal Republic of Germany based itself on its declaration of 1961 (which referred to the European Convention for the Peaceful Settlement of Disputes of 29 April 1957) in order to appear before the Court in the cases concerning the North Sea application to the delivery of the judgment on the merits, the expenses incurred by the Court in connection with the case, as well as any relevant circumstances. Albania was called upon to pay $500 towards the Court’s expenses in the Corfu Channel case (i.c.j. Yearbook 1949–1950, p. 90); Italy, $4,500, in the case concerning Monetary Gold removed from Rome in 1943 (i.c.j. Yearbook 1953–1954, p. 98); the Federal Republic of Germany, $50,000 in the North Sea Continental Shelf cases (i.c.j. Yearbook 1968–1969, pp. 110–111), and $163,501 in the Fisheries Jurisdiction case (i.c.j. Yearbook 1973–1974, p. 125).

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Continental Shelf.16 In the Fisheries Jurisdiction case, it founded itself on a declaration of 1971, made in respect of all disputes which may arise between it and the Republic of Iceland in connection with the German-Icelandic exchange of notes of 19 July 1961 relating to the extension of fisheries jurisdiction round Iceland.17 A “special declaration” (referring to the Tripartite Statement of 25 April 1951 signed by France, the United Kingdom and the United States) was submitted by Italy in the Monetary Gold case.18 * These provisions have lost much of their practical importance, since most States in the world now have access to the Court as un Member States. The fact remains, however, that specific questions related to the conditions of access to the Court may still arise. Thus, in recent cases involving the Federal Republic of Yugoslavia (Serbia and Montenegro/Serbia), in the context of the dissolution of the former Socialist Federal Republic of Yugoslavia (sfry), the Court dealt with various aspects of the provisions of Article 35. In those cases, the Court explained that the provisions in Article 35 have to be distinguished from those contained in Articles 36 and 37, which concern the jurisdiction ratione materiae of the Court and which only apply as between States parties to the Statute. As such, the question of jurisdiction ratione personae, or access to the Court, is not left with the parties to a particular case, but has to be objectively determined by the Court.19 Thus, as already 16 See North Sea Continental, i.c.j. Pleadings, Oral Arguments, Documents, vol. i, p. 6. 17 See Application Instituting Proceedings, 5 June 1972, i.c.j. Pleadings, Oral Arguments, Documents, vol. ii, p. 3. 18 See Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), i.c.j. Pleadings, Oral Arguments, Documents, vol. i, p. 19. 19 Legality of the Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, i.c.j. Reports 2004, p. 295, para. 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 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

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indicated, this matter is not only of interest “subjectively” for the States parties to a dispute. It also touches upon important matters of “objective” interest for the United Nations and its Members (such as the acceptance of all the rules of the Statute of the Court and of the relevant provisions of the un Charter regarding the binding force and enforcement of the Court’s decisions, or the contribution to the expenses of the Court). In this respect it represents one of the main differences between ad hoc arbitration and the judicial settlement of disputes by a permanent body forming part of an international organization. The Court also clarified the meaning and scope of the proviso in Article 35 (2) of the Statute, “subject to special provisions contained in Treaties in Force”: it decided that this proviso applies only to “treaties in force at the date of the entry into force of the Statute, and providing for the jurisdiction of the… Court…and not to any treaties concluded since that date”.20

20

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”. See also Fisheries Jurisdiction (Federal Republic of Germany/Iceland), Jurisdiction of the Court, Judgment, i.c.j. Reports 1973, p. 53, para. 11: “[the bilateral exchange of notes] is designed to establish the jurisdiction of the Court over a particular kind of dispute, while the latter [the German declaration under Security Council resolution 9 (1946)] provides for access to the Court of States which are not parties to the Statute”. Legality of the Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, i.c.j. Reports 2004, p. 324, para. 113: “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 of Article 35, paragraph 2, namely the regulation of access to the Court by States non-parties 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”.

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However, a question which the Court never addressed was whether the conditions to which “access” to the Court is subject, in accordance with Article 35 of the Statute, apply to both applicant and respondent States.21 The expression “shall be open”, in Article 35, paragraphs 1 and 2, as well as in the first paragraph of the Security Council resolution, is a neutral one, although it may suggest a positive act, in the sense that these provisions address the “access” to the Court or its “availability” for a State seeking to bring proceedings before it. Nonetheless, paragraph 3 of Article 35 clearly applies to both applicant and respondent States. The 1945 travaux préparatoires relating to these provisions remain silent on the question. However, it would appear from the travaux préparatoires of Article 35 of the Statute of the Permanent Court of International Justice that, when the then Article 32 of the preliminary draft prepared by the Committee of Jurists22 was considered by the sub-committee of the Third Committee of the first Assembly of the League of Nations, it was explained that “the Article applies only to the plaintiff Parties”.23 The question has not been fully settled in the judicial practice of the Court. The S.S. ‘Wimbledon’ case, brought before the pcij, might be invoked in support of the idea that Article 35 did not apply to the Respondent (in that case Germany). Thus the latter, which was not a party to pcij’s Statute, did not object to the Court’s jurisdiction ratione personae, and nor did the Court raise the issue itself. As stated in a leading work on the practice of the pcij:

21

22 23

The Court referred to the question in its Judgment in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) case, as “being one of interpretation of the Statute, [which] would be for the Court to determine”, but it did not find it necessary to do so, Judgment, i.c.j. Reports 2007, p. 102, para. 141. See also the separate opinion of Judge Abraham in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, i.c.j. Reports 2008, p. 412. For this judge, the 2008 Judgment, reading between the lines, appears to suggest that the Court accepted that Article 35 of the Statute applies to both the Applicant and the Respondent (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, i.c.j. Reports 2008, p. 537, para. 41). “The Court shall be open of right to the States mentioned in the Annex to the Covenant, and to such others as shall subsequently enter the League of Nations.” League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court, p. 141.

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In the S.S. ‘Wimbledon’ case, brought before the Court under Article 386 of the Treaty of Versailles, Germany, which at that point had yet to become a Member of the League, was the Respondent. A declaration was not considered as necessary, on the one hand, in light of the reservation contained in Article 35, paragraph 2, of the Statute which concerns in particular—as is apparent from the drafting history of the article—­ certain provisions of the Peace Treaties, and on the other hand, in those proceedings Germany was the Respondent and the article—as also seems apparent from its drafting history—only concerns the applicant parties.24 It was thus considered, in light of the decision taken by the Permanent Court in the Wimbledon case, “that the obligation in question could only be imposed on the applicant Party, and not on the respondent”.25 During the revision of the Rules of the Court, in 1926, the question was left open, “and preserved the freedom of the Court to rule in each individual case on the necessity of the declaration”.26 In the Corfu channel case, the Order adopted by the President of the Court fixing time-limits for the submission of the first two written pleadings referred to the declaration made by Albania (at that time in a position of a Respondent State), as fulfilling the conditions required under Article 35 of the Statute and Article 36 of the Rules.27 It might be inferred from this that the President considered such a declaration by the then Respondent (the Parties later concluded a Special Agreement) to be necessary. The jurisprudence of the Court has failed to shed further light on the matter.28 The object and purpose of the relevant provisions, namely to provide the broadest access possible to the Court, while safeguarding the equality between the parties, may lead to contradictory results.

24

25 26 27 28

B. Schenk von Stauffenberg, Statut et Règlement de la Cour permanente de justice internationale: Elements d’interprétation, Institut für Ausländisches Öffentliches Recht und Völkerrecht, Carl Heymanns Verlag, Berlin, 1934, p. 234; emphasis added. [Translation]. Series D, Acts and Documents concerning the Organization of the Court, Addendum to No. 2, Revision of the Rules of Court, 1926, p. 75. B. Schenk von Stauffenberg, op. cit., note 24, pp. 235–236. i.c.j. Reports 1946–1947, p. 5. For the relevant cases, see the separate opinion of Judge Abraham in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, i.c.j. Reports 2008, pp. 533–534, paras. 25–28.

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It has been argued, however, that, in light of the purpose of the relevant provisions of Article 35 of the Statute, the conditions should be interpreted as applying only to the Applicant State. First, such interpretation would entail no real inequality between the parties, contrary to one of the apparent main objections in this respect.29 Secondly, interpreting Article 35 as applicable to both Parties could lead to the unfortunate result that a State not party to the Statute, while being bound by a treaty containing a compromissory clause conferring jurisdiction ratione materiae on the Court, may escape its jurisdiction simply by refraining from satisfying the conditions of access to the Court.30 International Organizations before the icj The provisions of the icj Statute, restricting access to the Court to States only, reflect the situation which prevailed at a time when the State was the only protagonist in international relations. Needless to say, the international community has undergone a profound transformation over time, not only since 1920, but also since 1945. The Court itself recognized in 1949 that States were not the only subjects of the international legal order, and it made clear that international organizations, in that particular case the United Nations, may enjoy certain rights and incur responsibilities at international level. In the advisory proceedings relating to the Reparation for injuries suffered in the service of the United Nations, the main question addressed to the Court concerned the capacity of the Organization to bring an international claim against a State with a view to obtaining reparation for injuries caused by it to the Organization or to the agents of the latter. The Court stated the following: 29

30

Ibid., pp. 535–536, paras. 34–35: “The consequence of an ‘asymmetrical’ interpretation of Article 35 appears to be that, for two States bound by a compromissory clause, where one of them fulfils the conditions of access but the other not, the former could take the initiative to bring the latter before the Court (since it has standing to do so), while the converse will not apply…However, on further reflection, that objection is not convincing at all, since the inequality which it exposes is merely apparent. Indeed, there is nothing to stop a State which is a party to a treaty containing a compromissory clause and which seeks to apply it in order to resolve a given dispute from positioning itself so as to have access to the Court by fulfilling the conditions laid down by Article 35, paragraph 2, and the Security Council resolution to which that paragraph refers.” Ph. Couvreur, “Article 93”, in J.P. Cot, M. Forteau & A. Pellet, La Charte des Nations Unies, Economica, Paris, 3d ed., 2005, pp. 1963–1986. See also the separate opinion of Judge Abraham, supra note 21, p. 536, para. 41. “In other words, this interpretation of Article 35 enables a State to comply or not to comply, as it sees fit, with a treaty clause, compliance with which nonetheless constitutes an international legal obligation.” (Ibid.).

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The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable.31 However, since States alone have capacity to appear before the Court, public (governmental) international organizations cannot as such be parties to any case before it. A special procedure, the advisory procedure, is available to such organizations. The distinctive features of the advisory procedure before the Court, which is also part of the judicial function of the Court, will be addressed separately later on. The fact that the Statute does not accord the capacity to appear as a litigant before the Court to any subjects of international law other than States does not mean that the international legal personality of such subjects is ignored by it. A limited measure of procedural capacity is conferred on international organizations before the icj. In 1945 already, new provisions (by comparison with the pcij’s Statute) were included in Article 34 of the Statute, to provide for cooperation between international organizations and the Court in contentious proceedings. Those organizations may thus, on their own initiative or at the request of the parties or the Court, be called upon to provide the Court with all relevant information in a case (Statute, Art. 34 (2)). Moreover, when the Court is required to examine and interpret the constituent instrument of an international organization or a convention concluded under that instrument, the Registrar shall notify the organization concerned and communicate the pleadings to it (Statute, Art. 34 (3)) so as to enable it to express its views.32 31 32

Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, i.c.j. Reports 1949, p. 178. The procedure is detailed in Article 69 of the Rules: 1. The Court may, at any time prior to the closure of the oral proceedings, either proprio motu or at the request of one of the parties communicated as provided in Article 57

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The Court took into account the growth of international organizations by amending its Rules in 2005 in order to widen access to contentious proceedings—although not as parties—to such organizations. This amendment was triggered by cases where the Court might have been called upon to construe a convention to which an international organization was party rather than individual member States thereof (such as the Fisheries Jurisdiction (Spain v. Canada) case, in which the 1978 Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries was invoked; only the European Community/ European Union, is a party to that Convention, and not its Member States, because the organization is exclusively competent for fisheries policy33). In such cases, under the Statute and Rules of the Court, as they read before the 2005 amendment, neither the member States nor the organization would have been

33

of these Rules, request a public international organization, pursuant to Article 34 of the Statute, to furnish information relevant to a case before it. The Court, after consulting the chief administrative officer of the organization concerned, shall decide whether such information shall be presented to it orally or in writing, and the time-limits for its presentation. 2. When a public international organization sees fit to furnish, on its own initiative, information relevant to a case before the Court, it shall do so in the form of a Memorial to be filed in the Registry before the closure of the written proceedings. The Court shall retain the right to require such information to be supplemented, either orally or in writing, in the form of answers to any questions which it may see fit to formulate, and also to authorize the parties to comment, either orally or in writing, on the information thus furnished. 3. In the circumstances contemplated by Article 34, paragraph 3, of the Statute, the Registrar, on the instructions of the Court, or of the President if the Court is not sitting, shall proceed as prescribed in that paragraph. The Court, or the President if the Court is not sitting, may, as from the date on which the Registrar has communicated copies of the written proceedings and after consulting the chief administrative officer of the public international organization concerned, fix a time-limit within which the organization may submit to the Court its observations in writing. These observations shall be communicated to the parties and may be discussed by them and by the representative of the said organization during the oral proceedings. 4. In the foregoing paragraph, the term ‘public international organization’ denotes an international organization of States. Some States parties to the Convention, which were not members of the eu at the time of the conclusion or ratification of the Convention, withdrew from the Convention when they became members of the European Union. See: http://www.nafo.int/about/frames/ convention.html. Denmark and France are Contracting Parties, to the extent that a derogational régime applies in relation to certain specific territorial situations (Faroe Islands and Greenland, St Pierre et Miquelon).

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able to submit specific observations on the interpretation of the convention as such.34 Thus the procedural framework designed in 2005 allows every public international organization which is a party to a convention whose construction may be in question in a case before the Court to submit its observations on the interpretation of particular provisions of that convention. The new provision is inspired, mutatis mutandis, by the procedure permitting the intervention of States parties to a convention whose construction is at issue in a dispute (Art. 63 of the Statute). It was introduced into the Rules of Court by an amendment to Article 43, which entered into force on 29 September 2005.35 Until now, no public international organization has availed itself of this possibility. Paragraphs 2 and 3 of Article 34 of the Statute apply only to public international organizations. Article 69 (4), of the Rules of the Court explains that, in Article 34 (2) and (3) of the Statute, “the term ‘public international organization’ denotes an international organization of States”.36 This provision was included in the Rules of the Court in 1978, and reflects the Court’s practice since 1945; it bars non-governmental organizations from participating in contentious proceedings.37 It is worth recalling here the different terminology used in Article 66 (2) of the Statute, concerning the participation of “international 34 35

36

37

Although Article 34 (2) of the Statute, given its wide terms, could probably have been used as such, without additional specification, for that purpose, in exceptional circumstances. Article 43 (2) and (3): “2. Whenever the construction of a convention to which a public international organization is a party may be in question in a case before the Court, the Court shall consider whether the Registrar shall so notify the public international organization concerned. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case. 3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2, of these Rules”. A more recent and broader definition of an “international organization” was given by the International Law Commission in the context of its Draft Articles on Responsibility of International Organizations, the text of which was annexed to ga resolution A/RES/66/100 (9 December 2011). According to Article 2 (a) of the Draft: “For the purposes of the present draft articles, (a) ‘international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.” In the Asylum (Columbia v. Peru) case, the Court refused to accept that the International League for the Rights of Man, a non-governmental organization enjoying a consultative

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organizations” in advisory proceedings. The pcij had adopted a liberal approach in applying the corresponding provision of its Rules. The icj has taken a more restrictive position, at least with regard to the submission of written statements and/or documents by an international non-governmental organization on its own initiative.38 * Although the State is still, today, the “necessary” subject of the international legal order and the essential protagonist in international relations, international organizations have asserted their autonomy to such an extent that they are in many respects the only de facto and de jure interlocutors in an increasing number of fields of international life. As effective protagonists in international relations, those legal subjects doubtless constitute potential parties to certain international disputes which may turn out to be particularly threatening to the maintenance of peace. However, as matters stand now, those disputes fall completely outside the sphere of the Court’s action. In that context, different calls and proposals have been made for international organizations to be given the capacity to appear in their own right, as litigants, before the Court.39 Should the access to contentious proceedings before the Court be opened to international organizations, several questions would have to be decided when amending the Statute of the Court: – Which kind of “international organizations” should be covered by an amendment to Article 34 of the Statute? – How should the capacity to appear before the Court be accorded to such international organizations, as generically defined by the Statute? Should they be obliged, like States, either to become parties to the Statute of the Court under the control of the General Assembly and the Security Council, or to file an ad hoc declaration with the Registry in accordance with specific conditions fixed by the Security Council?

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status with the Economic and Social Council, had the status of a public international organization, see i.c.j. Pleadings, Asylum Case(Colombia/Peru), pp. 227, 228. See Practice Direction xii (see I.CJ., Acts and Documents No. 6, p. 171). Ph. Couvreur, “Développements récents concernant l’accès des organisations intergouvernementales à la procédure contentieuse devant la Cour internationale de Justice”, Liber Amicorum—Mohammed Bedjaoui, pp. 293–323, 1999; M. Bedjaoui, “The International Organizations Before the International Court of Justice: Appraisal and Future Prospects”, i.c.j. Yearbook 1994–1995, pp. 215–235.

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– Which kind of disputes involving international organizations could be decided by the Court? Only “external” litigation of international organizations, i.e., disputes between the organization and third States? Or also “internal” litigation, i.e., disputes between the organization and Member States? – Should the acceptance by international organizations of the jurisdiction ratione materiae of the Court be restricted to compromissory clauses or compromis, or should it be possible for them to accept the general compulsory jurisdiction of the Court, in accordance with Article 36 (2) of the Statute, in relation to any other States or other organizations accepting the same obligation? For the time being, the lack of capacity of international organizations to appear before the Court as litigants may raise a number of questions with regard to the jurisdiction of the Court over certain disputes between States or to the admissibility of applications submitted in an inter-State dispute, for example the question whether, in a dispute between States, the Court may exercise a “judicial review” of the legality of decisions taken by organs of an international organization,40 or whether, in a dispute between States, the Court may indirectly rule on the rights/obligations of an international organization and/or determine its international responsibility?41 40 See infra, Chapter 3. 41 See for example: Application of the Interim Accord of 13 September 1995 (The former Yugoslav Republic of Macedonia v. Greece), Judgment, i.c.j. Reports 2011, pp. 659–661, paras. 39–44. In that case, the Court assumed that the principle first applied in the Monetary Gold case may also be relevant when the rights and obligations of an international organization formed the subject-matter of the decision of the Court on the merits of an inter-State dispute, or when the assessment of its responsibility is a prerequisite for the determination of the responsibility of the Respondent. This question was also raised in the case concerning Legality of the Use of Force (Serbia and Montenegro v. France), in which the Respondent, in accordance with the Monetary Gold principle, contended that, even if the Court were to hold that it had jurisdiction, it would be precluded from exercising it because this would require it first to rule on the rights of States and international organizations not parties to the proceedings and which, in the case of the latter at least, could not be parties thereto (reference was made specifically to nato and kfor (which operated under nato direction but subject to a degree of control by the United Nations)). According to France: “determining the legality of the acts by nato [would have been] an indispensable prerequisite to any finding of the responsibility of on the part of France. If France had committed the acts of which it stand accused by the Applicant, it would have been acting in pursuance of decisions taken by the Brussels Organization”, Preliminary Objections of the French Republic (http://www.icj-cij.org/docket/files/107/10873.pdf), para. 35. Since the Court found

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(b) Jurisdiction ratione materiae The familiar question of the jurisdiction ratione materiae of the International Court of Justice, which has been widely debated since the first attempts to create a permanent international court in the early twentieth century, will not be revisited here at length. The system that was eventually adopted in 1920, and retained in 1945 in the Statute of the present Court, leaves States free to consent, in the expression of their sovereign will, to the compulsory jurisdiction of the Court to settle their disputes, whether with regard to a particular case, by means of a special agreement to that effect; with regard to a category of disputes concerning the interpretation and application of a treaty having a specific object, by means of a compromissory clause inserted in such a treaty, or by means of a compromissory clause in a treaty the object of which is to provide for judicial settlement; and lastly, with regard to all legal disputes, by a declaration filed with the Secretary-General of the un, recognizing the jurisdiction of the Court as compulsory ipso facto, in relation to any other State accepting the same obligation. These different ways for States to consent to having their legal disputes decided by the icj are indicated in Article 36 of the Statute.42 To date, 17 cases have been submitted to the Court on the basis of a Special Agreement, in accordance with Article 36, paragraph 1, of the Statute.43 The

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that it had no jurisdiction (ratione personae) in that case, it did not have to decide this question. Paragraph 1 provides: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Paragraph 2 reads as follows: “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”. Asylum (Colombia/Peru), Judgment, i.c.j. Reports 1950, p. 266; Minquiers and Ecrehos (France/United Kingdom), Judgment, i.c.j. Reports 1953, p. 47; Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment, i.c.j. Reports 1959, p. 209; North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), Judgment, i.c.j. Reports 1969, p. 3; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, i.c.j. Reports 1982, p. 18; Delimitation of the Maritime Boundary in

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same provision envisages the possibility of treaties and conventions which provide for the jurisdiction of the Court in certain matters. A number of treaties, either bilateral or multilateral, have thus been concluded over time, which confer jurisdiction on the Court for the settlement of disputes between the contracting parties relating to their interpretation or application,44 or, more broadly, provide for the peaceful settlement of all kinds of disputes, including legal disputes before the Court.45

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the Gulf of Maine Area (Canada/United States of America), Judgment, i.c.j. Reports 1984, p. 246; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, p. 13; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, i.c.j. Reports 1986, p. 554; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), i.c.j. Reports 1992, p. 351; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, i.c.j. Reports 1994, p. 6; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, i.c.j. Reports 1997, p. 7; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, i.c.j. Reports 1999 (ii), p. 1045; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), Judgment, i.c.j. Reports 2002, p. 625; Frontier Dispute (Benin/Niger), Judgment, i.c.j. Reports 2005, p. 90; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, i.c.j. Reports 2008, p. 12; Frontier Dispute (Burkina Faso/Niger), Judgment, i.c.j. Reports 2013, p. 44. In the Corfu Channel case, the proceedings were instituted by an application. However, immediately after the delivery of the judgment rejecting the preliminary objection filed by Albania, the Court was notified of a special agreement concluded between the Parties which then formed the basis of subsequent proceedings, Judgment of April 9th 1949, i.c.j. Reports 1949, p. 4. See, for example, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972, p. 46 (Art. 84 of the Convention on International Civil Aviation, 7 December 1944); LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports, 2001, p. 466 (Art. 1 of the Optional protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963); Avena and Other Mexican Nationals (Mexico v. United States), Judgment, I.C.J. Reports 2004, p. 12; Application of the Convention for the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43 (Art. IX of the Convention, 9 December 1948); Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14 (Article 60, paragraph 1, of the Statute of the River Uruguay, 26 February 1975); Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment, I.C.J. Reports 2011, p. 644 (Article 21, paragraph 2, of Interim Accord of 13 September 1995); and Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I.C.J. Reports 2012, p. 422; (Art. 30, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984). See, for example, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment, i.c.j. Reports 2012, p. 99 (Art. 1 of the European Convention for the

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In addition to these two traditional means of accepting the jurisdiction of the Court, it can happen that consent of a respondent State may be inferred from its conduct before the Court or in relation to the applicant party; this situation is known as one of forum prorogatum. For the Court to exercise jurisdiction on the basis of forum prorogatum, the element of consent must be clearly established.46 It has also happened a number of times that a State has instituted proceedings before the icj while recognizing that the opposing party has not accepted the Court’s jurisdiction and inviting it to do so.47 Since the revision of the Rules of Court in 1978 and the adoption of Article 38 (5), such applications no longer have the effect of instituting proceedings, and there is no case to enter on the General List, unless and until the potential Respondent accepts the Court’s jurisdiction to entertain the application. To date, there have only been two instances where that has happened.48 This new procedure is more logical, and more economical, as well as more respectful of the sovereignty of States: in the previous situation, a “case” was entered in the General List, and then had subsequently to be removed from it by an Order of the Court if the potential Respondent failed to accept the Court’s jurisdiction.49 States which have opted to accept the compulsory jurisdiction of the Court, pursuant to Article 36 (2) of the Statute, do not today represent the majority

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Peaceful Settlement of Disputes, 29 April 1957); Maritime Dispute (Peru v. Chile), Judgment, i.c.j. Reports 2014, p. 3 (Art. xxxi of the American Treaty on Pacific Settlement signed on 30 April 1948, “Pact of Bogotá”). See Rights of Minorities in Upper Silesia, Judgment, Judgment No. 12, 1928, p.c.i.j., Series A, No. 15, p. 24; Corfu Channel, Preliminary Objection, i.c.j. Reports 1947–1948, p. 27; Haya de la Torre (Colombia/Peru), Judgment, i.c.j. Reports 1951, p. 78; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, i.c.j. Reports 1996 (ii), pp. 620–621, para. 40; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, p. 204, para. 62. See the cases referred to by the Court in its Judgment in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, pp. 204–205, paras. 62–63. Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, i.c.j. Reports 2003, pp. 103–104, para. 21 (this case was later discontinued at the request of the Republic of the Congo, id., Order of 16 November 2010, i.c.j. Reports 2010, p. 635); Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, p. 177. Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, pp. 204–205, para. 63.

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of the Members of the United Nations. The steady increase in their number since the creation of the Court (with the exception of a decrease by one in 1974, and again in 1985 following the withdrawal of their declarations by France and the United States respectively) has reflected the increase in the number of Member States, albeit at a far lower rate. As a result, there are today 72 States50 which have subscribed to the “optional clause for compulsory jurisdiction” under Article 36 (2), of the Statute, out of a total of 193 Member States.51 The General Assembly has called upon States that have not yet done so “to consider accepting the jurisdiction of the Court in accordance with its Statute”.52 The Secretary-General of the United Nations has recently launched “a campaign to increase the number of Member States that accept as compulsory the jurisdiction of the International Court of Justice”.53 However, it should not be forgotten that the “general” acceptance by a State of the compulsory jurisdiction of the Court under Article 36 (2) of the Statute of the Court can be accompanied by reservations limiting its scope, and this is very often the case in practice. While declarations certainly constitute, historically, the most recent and innovative way for States to express their consent to the jurisdiction of the international judge, they should not overshadow the importance of others. In particular, acceptance of the Court’s jurisdiction for the settlement of a specific case, by means of a special agreement or on the basis of forum prorogatum, should not be discouraged. Practice has demonstrated the potential advantages associated with these means of bringing cases before the Court for both States and the Court.

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Five new declarations were filed with the Secretary-General over the last four years: Lithuania and Timor-Leste in 2012, the Marshall Islands in 2013, Italy in 2014, and Romania in 2015. In 1948, of the 58 Member States, 34 (including four out of five permanent members of the Security Council) recognized the compulsory jurisdiction of the Court, some 59 per cent of the United Nations membership as compared to today’s rate of less than 40 per cent (72 States, including only one of the five permanent members of the Security Council, out of 193 Member States). These numbers include States which had accepted the compulsory jurisdiction of the Court in accordance with Article 36, para. 2, of the Statute of the Permanent Court of International Justice. This acceptance is deemed to have been made with respect to the International Court of Justice, when the conditions set out in Article 36, para. 5, of the Statute of the icj are met. 2005 World Summit Outcome, A/RES/60/1, 24 October 2005, para. 134 ( f ); Declaration on the rule of law at national and international levels, A/RES/67/1, 24 September 2012, para. 31. “Delivering justice: a programme of action to strengthen the rule of law at the national and international levels”, Report of the Secretary-General, un, A/66/749 (2012), para. 15 (b).

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A former President of the Court, Judge Rosalyn Higgins, has explained that: [e]xperience shows that cases brought on the basis of Article 36 (2) are very likely to occasion extended controversy as to the Court’s jurisdiction. Cases coming on the basis of a compromissory clause in a treaty are less so. As to cases coming by Special Agreement, they are not immune from that possibility—but jurisdictional matters play a much smaller role. The Court is more rapidly able to proceed to assisting in the resolution of the dispute. An increased number of States making the declarations under the optional clause would of course be welcome. But I hope from what I had to say that it is evident that, so far as the contribution that the Court can make to the resolution of international disputes, the answer cannot lie in States, or groups of States, depositing optional clause declarations which have within their terms reservations and conditions, carefully worded with so much legal skill, so as to render almost nil the scope of the apparent acceptance of the Court’s jurisdiction. That simply adds to the days and weeks that the Court will spend on objections to jurisdiction, and diminishes the time it has for resolving major substantive disputes.54

Objections to the Court’s Jurisdiction and Determination by the Court of the Reality and Scope of States’ Consent In practice, the possibility of unilaterally bringing a dispute before the Court thus often triggers a specific dispute as to the existence and scope of such consent and, consequently, as to the power of the Court to actually settle the dispute on the merits. Even in cases where the dispute is brought to the Court on the basis of a special agreement or forum prorogatum, one of the parties may object to the jurisdiction of the Court with regard to certain submissions made in the proceedings.55 As Rosenne put it, special agreements “are themselves in the nature of a compromise and for that reason are not always drafted in unambiguous terms”,56 a fact which opens room for dispute over the exact scope of the consent given by the litigating States to the Court’s jurisdiction. It is then for the Court to decide such dispute. 54 55

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Speech to the Sixth Committee of the General Assembly, 31 October 2008, i.c.j. Yearbook 2008–2009, p. 387. Borchgrave (Belgium/Spain), p.c.i.j., Series A/B No. 72, p. 158; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, pp. ­200–201, paras. 48–50. S. Rosenne, The Law and Practice of the International Court, Martinus Nijhoff Publishers, Leiden/Boston, 2006, Vol. ii, pp. 644–645.

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The power of an adjudicating body (be it an arbitral tribunal or a court) to decide its own jurisdiction has been described as one of the most remarkable progresses achieved in the field of arbitral and judicial settlement of international disputes at the beginning of the twentieth century.57 The principle was applied, implicitly, by certain arbitral tribunals, and was enshrined in different arbitration treaties in the late nineteenth century, as well as in Articles 48 and 73 of the Hague Conventions of 1899 and 1907.58 Article 36 of the pcij Statute provided: “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by decision of the Court.” Article 36, paragraph 6, of the icj Statute provides for the icj’s KompetenzKompetenz in identical terms. In the Nottebohm case, the icj emphasized the general nature of this principle in the following terms: Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. The principle was expressly recognized in Articles 48 and 73 of the Hague Conventions of July 29th, 1899, and October 18th, 1907, for the Pacific Settlement of International Disputes…The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, represented by him as being of ‘the very essence of the arbitral function and one of the inherent requirements for the exercise of this function’. This principle has been frequently applied and at times expressly stated. This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its 57

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G. Salvioli, “Les rapports entre le jugement sur la compétence et celui sur le fond dans la jurisprudence internationale”, Revue générale de droit international public, Vol. 36, 1929, p. 108. “The Tribunal is authorized to declare its competence in interpreting the compromis, as well as the other Treaties which may be invoked [1907: in the case], and in applying the principles of [1899: international] law”.

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operation, and is, in the present case, the principal judicial organ of the United Nations.59 Such power is indeed a fundamental prerequisite for the effectiveness of international courts and tribunals: should the Court or Tribunal not possess such power, a State would be free to frustrate the consent it has given, prior to the arising of a dispute, by merely objecting to the jurisdiction of the Court and denying the power of the latter to decide on this issue. While the icj undisputedly has the power to decide (definitively) on the matter of its jurisdiction over a particular dispute, in doing so the Court has to ascertain the existence and scope of the consent given by the States parties to this dispute. Reflecting a more general debate regarding the principles of interpretation in international law, “it has been maintained that clauses conferring jurisdiction upon international tribunals must be interpreted restrictively seeing that they are in derogation of sovereignty”.60 The pcij may have appeared to refer sometimes to a rule of restrictive interpretation.61/62 The icj referred once to “the arguments, deduced from the sovereignty of States, which may have been invoked in favour of a restrictive

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Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, i.c.j. Reports 1953, p. 119. H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties”, 26 British Yearbook of International Law, 1949, pp. 48–85, para. 65. Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, p.c.i.j., Series A/B, No. 46, pp. 138–139: “The Court does not dispute the rule invoked by the French Government, that every Special Agreement, like every clause conferring jurisdiction upon the Court, must be interpreted strictly; but that rule could not be applied in such a way as to give the Special Agreement, under the guise of strict interpretation, a construction according to which it would not only fail entirely to enunciate the question really in dispute, but would, by its very terms, have prejudged the answer to that question. (Emphasis added.)” Phosphates in Morocco, Judgment, 1938, p.c.i.j., Series A/B, No. 74, p. 23–24: “The declaration, of which the ratification was deposited by the French Government on April 25th 1931, is a unilateral act by which that Government accepted the Court’s compulsory jurisdiction. This jurisdiction only exists within the limits within which it has been accepted. In this case, the terms on which the objection ratione temporis submitted by the French Government is founded, are perfectly clear: the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute. In these circumstances, there is no occasion to resort to a restrictive interpretation that, in case of doubt, might be advisable in regard to a clause which must on no account be interpreted in such a way as to exceed the intention of the States that subscribed to it. (Emphasis added.)”

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interpretation of the provisions governing the jurisdiction of a tribunal adjudicating between States”.63 However, it has been shown that the Court has never actually endorsed or applied such an approach, even if it sometimes expressed “in a general way… approval of restrictive interpretation of jurisdictional clauses [or titles]”.64 Indeed, the Court has considered that the existence of its jurisdiction in a given case is a question to be determined objectively: The existence of jurisdiction of the Court in a given case is however not a question of fact, but a question of law to be resolved in the light of the relevant facts. The determination of the facts may raise questions of proof. However the facts in the present case—the existence of the Parties’ declarations under Article 36 of the Statute, the signature and ratification of the Pact of Bogota, etc.—are not in dispute; the issue is, what are the legal effects to be attached to them? The question is whether in case of doubt the Court is to be deemed to have jurisdiction or not. This question has already been considered by the Permanent Court of International Justice in the case concerning the Factory at Chorzow, Jurisdiction, when it observed: “It has been argued repeatedly in the course of the present proceedings that in case of doubt the Court should decline jurisdiction. It is true that the Court’s jurisdiction is always a limited one, existing only in so far as States have accepted it; consequently, the Court will, in the event of an objection—or when it has automatically to consider the question—only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant. The fact that weighty arguments can be advanced to support the contention that it has no jurisdiction cannot of itself create a doubt calculated to upset its jurisdiction. When

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Judgments of the Administrative Tribunal of the International Labour Organisation upon complaints made against the u.n.e.s.c.o., Advisory Opinion of October 23rd 1956, i.c.j. Reports 1956, p. 97. In this particular opinion, the Court rejected such arguments in so far as they were “not relevant to a situation in which a tribunal [as the ilo Administrative Tribunal] is called upon to adjudicate upon a complaint of an official against an international organization”. H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties”, op. cit., note 60, p. 66.

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considering whether it has jurisdiction or not, the Court’s aim is always to ­ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it.” (P.C.I.J., Series A, No. 9, p. 32) The Court will therefore in this case have to consider whether the force of the arguments militating in favour of jurisdiction is preponderant, and to “ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it.65 Conferring jurisdiction upon the Court may not be seen as a “an abandonment of its sovereignty”66 for the State concerned, nor as a restriction on its liberty which ought to be interpreted restrictively. However, this does not mean that the Court may have recourse to any principle of “extensive interpretation” either. In interpreting special agreements (compromis), which are international treaties, the Court applies the generally accepted rules of treaty interpretation (as reflected in the Vienna Convention on the Law of Treaties of 1969).67 In doing so, the Court takes into account “the basic rule of Article 31 of the Vienna Convention on the Law of Treaties, according to which a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms”,68 “in their context”,69 and “in light of its object and purpose”.70 The Court may also have recourse to supplementary means of interpretation, such as the 65

Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1988, p. 76, para. 16. 66 Cf., mutatis mutandis, for the conclusion of any treaty, S.S. “Wimbledon”, p.c.i.j., 1923, ­Series A, No. 1, p. 25: “The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty”. 67 A Chamber of the Court referred to the “normal rules of treaty interpretation” to be ­applied to the interpretation of a compromis, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), Judgment, i.c.j. Reports 1992, p. 582, para. 373. 68 Ibid., pp. 582–583, para. 373. 69 Ibid., p. 583, para. 374. 70 Article 31 (1) of the Vienna Convention reads as follows: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose.”

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preparatory work of the compromis, but in principle “only where the meaning of the text [as it results from the application of the usual means of interpretation] is ambiguous or obscure, or the interpretation would lead to a manifestly absurd or unreasonable result”.71 As a general rule, the Court, “in interpreting a text of [the] kind [of a compromis]…must have regard to the common intention as it is expressed in the words of the Special Agreement”.72 It has refrained from accepting the principle of effectiveness (effet utile) as a general rule of interpretation,73 although the Court (as well as its predecessor) may have had recourse to such principle on some occasions.74 Thus: Since the jurisdiction of the Court derives from the Special Agreement between the Parties, the definition of the task so conferred upon it is ­primarily a matter of ascertainment of the intention of the Parties by 71 72

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Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, i.c.j. Reports 1992, p. 584, para. 376. Ibid. (referring to the Arbitral Award of 21 July 1989 case, where the Court observed that “although the two States had expressed in general terms…their desire to reach a settlement of their dispute, their consent thereto had only been given in the terms laid down by Article 2”, i.c.j. Reports 1991, p. 72, para. 56). Ibid., p. 584, paras. 375–376. Honduras had invoked this principle. It “maintain[ed] that, without delimitation [of all the maritime spaces whose sole ‘legal situation’ the Court was explicitly called to determine by the Special Agreement], the Judgment [would] fail to attain its objective, which is the final solution for the dispute between the Parties. In the Chamber’s view, however, in interpreting a text of this kind it must have regard to the common intention as it is expressed in the words of the Special Agreement”. Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, p.c.i.j., Series A, No. 22, p. 13: “in case of doubt, the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects”. See also Corfu Channel (United Kingdom v. Albania), Merits, Judgment, i.c.j. Reports 1949, p. 24: “It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect” (the question was whether the Special Agreement allowed the Court to determine the amount of compensation due to the United Kingdom, notwithstanding the wording of the text which referred only to the duty to pay reparation). It must be noted that, in this case, the icj did not only invoke the effective settlement of the dispute, but also heavily relied on the attitudes and intention expressed by the Parties prior to and after the conclusion of the Special Agreement, ibid., pp. 24–26.

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i­ nterpretation of the Special Agreement. The Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent.75 Regarding compromissory clauses in a treaty or convention, the Court also, logically, applies the customary rules and methods of interpretation of treaties, as reflected in the 1969 Vienna Convention on the Law of Treaties. In the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination [cerd] (Georgia v. Russian Federation), the Court examined the reference in Article 22 of cerd to “negotiation or… procedures expressly provided for” in the same Convention, with a view to ascertaining whether they constituted preconditions to be met before the seisin of the Court. In order to do so, the Court referred to the “well-established principle in treaty interpretation that words ought to be given appropriate effect”, as it had done earlier in cases submitted by way of a special agreement.76 A similar approach applies in the case of unilateral declarations accepting the compulsory jurisdiction of the Court under Article 36 (2) of the Statute, notwithstanding the “sui generis character of the unilateral acceptance of the Court’s jurisdiction” and the fact that the rules of treaty interpretation “may only apply analogously” to such unilateral declarations.77 In the Fisheries 75 76

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Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, p. 23, para. 19. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, i.c.j. Reports 2011 (i), p. 125, para. 133. The Court referred to the dicta in the Free Zones of Upper Savoy and the District of Gex, and also in the Corfu Channel cases, supra, note 74. The Court further referred to its jurisprudence concerning compromissory clauses comparable to Article 22 of cerd (id., pp. 126 et s., paras. 136 et s.), as well as to supplementary means of interpretation such as the travaux préparatoires in order to confirm its reading of the relevant texts, or at least to verify that they do not suggest a different conclusion from that at which it has already arrived “through the main method of ordinary interpretation” (ibid., p. 128, para. 142 and p. 130, para. 147). Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, i.c.j. Reports 1998, p. 453, para. 46: “A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. At the same time, it establishes a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute, and ‘makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance’ (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,

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J­ urisdiction case (Spain v. Canada), the Court elaborated the following rules for the interpretation of declarations and reservations: Every declaration ‘must be interpreted as it stands, having regard to the words actually used’ (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, i.c.j. Reports 1952, p. 105). Every reservation must be given effect ‘as it stands’ (Certain Norwegian Loans, Judgment, i.c.j. Reports 1957, p. 27). Therefore, declarations and reservations are to be read as a whole. Moreover, ‘the Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text’. (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, i.c.j. Reports 1952, p. 104.) At the same time, since a declaration under Article 36 (2) of the Statute is a unilaterally drafted instrument, the Court has not hesitated to place a certain emphasis on the intention of the depositing State. Indeed, in the case concerning Anglo-Iranian Oil Co., the Court found that the limiting words chosen in Iran’s declaration were ‘a decisive confirmation of the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court’ (ibid., p. 107).78 In the Court’s more recent Judgment in the Whaling in the Antarctic case, the Court summarized its approach as follows: The Court recalls that, when interpreting a declaration accepting its compulsory jurisdiction, it ‘must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention’ of the declaring State (Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment, i.c.j. Reports 1952,

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i.c.j. Reports 1998, para. 25). The regime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (ibid., para. 30). Spain has suggested in its pleadings that ‘[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those governing the interpretation of treaties’. The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction”. Fisheries Jurisdiction case (Spain v. Canada), Jurisdiction of the Court, i.c.j. Reports 1998, p. 454, paras. 47–48.

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p. 104). The Court noted in the Fisheries Jurisdiction case that it had ‘not hesitated to place a certain emphasis on the intention of the depositing State’ (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 454, para. 48). The Court further observed that ‘[t]he intention of a reserving State may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, and an examination of evidence regarding the circumstances of its preparation and the purposes intended to be served’ (ibid., p. 454, para. 49).79 Thus, when interpreting the reservations included by a State in its declaration under Article 36 (2), the Court has declined to draw extensive consequences from the State’s “general acceptance” of jurisdiction. In the Fisheries Jurisdiction case (Spain v. Canada), the Court recalled that: …the interpretation of declarations made under Article 36, paragraph 2, of the Statute, and of any reservations they contain, is directed to establishing whether mutual consent has been given to the jurisdiction of the Court. It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: ‘This jurisdiction only exists within the limits within which it has been accepted’ (Phosphates in Morocco, Judgment, 1938, p.c.i.j., Series A/B, No. 74, p. 23). Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court. There is thus no reason to interpret them restrictively. All elements in a declaration under Article 36, paragraph 2, of the Statute which, read together, comprise the acceptance by the declarant State of the Court’s jurisdiction, are to be interpreted as a unity, applying the same legal principles of interpretation throughout. This is true even when, as in the present case, the relevant expression of a State’s consent to the Court’s jurisdiction, and the limits to that consent, represent a modification of an earlier expression of consent, given within wider limits. An additional reservation contained in a new declaration of acceptance of the Court’s jurisdiction, replacing an earlier 79

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Merits, Judgment, i.c.j. Reports 2014, p. 244, para. 36.

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­declaration, is not to be interpreted as a derogation from a more comprehensive acceptance given in that earlier declaration; thus, there is no reason to interpret such a reservation restrictively. Accordingly, it is the declaration in existence that alone constitutes the unity to be interpreted, with the same rules of interpretation applicable to all its provisions, including those containing reservations.80

The Inherent Limitations on the Exercise of the Court’s Judicial Function Although the principle of consent is the fundamental principle governing the jurisdiction of the Court, it does not imply that every aspects of its jurisdiction are at the disposal of the parties to a particular dispute. Reference has already been made to the conditions, ratione personae, to which is subject such jurisdiction. Mention should also be made of certain limits to the parties’ consent, which derive not only from the Court’s Statute but also, more broadly, from the judicial function entrusted to the Court. In the Northern Cameroons case, the Court found that “it [could not] adjudicate upon the merits of the claim of the Federal Republic of Cameroon”81 (according to which the United Kingdom had failed to respect certain obligations flowing from the Trusteeship Agreement for the Territory of the Cameroons under British Administration), because this Treaty was no longer in force as between the Parties at the date of the filing of the Application and because the Applicant did not ask the Court to award reparation of any kind for the alleged violation of this treaty by the Respondent.82 For the Court, the proper limits of its judicial function [did] not permit it to entertain the claims submitted to it in the Application of which it [had] been seised, with a view to a decision having the authority of res judicata between the Republic of Cameroon and the United Kingdom. Any judgment which the Court [would have] pronounce[d] would [have been] without object.83

80 81 82 83

Fisheries Jurisdiction case (Spain v. Canada), Jurisdiction of the Court, i.c.j. Reports 1998, pp. 452–453, paras. 44–45 (Emphasis added). Northern Cameroon (Cameroon v. United Kingdom), Preliminary Objections, Judgment, i.c.j. Reports 1963, p. 38. Ibid., pp. 31–38. Ibid., p. 38.

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On this occasion, the Court recalled that “the seising of the Court is one thing, the administration of justice is another”.84 The Court observed further that It is the act of the Applicant which seises the Court but even if the Court, when seised, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity.85 The Court referred, in this context, to the different considerations which led the Permanent Court to decline to give judgment on questions posed by the parties.86 84 85 86

Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, i.c.j. Reports 1953, p. 122. Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, i.c.j. Reports 1963, p. 30. Id. “In the Free Zones case, the Permanent Court referred to three different considerations which would lead it to decline to give judgment on questions posed by the parties. These were raised by the Court proprio motu. In its Order of 19 August 1929 (p.c.i.j., Series A, No. 22, p. 15), the Court in the first place said that ‘It could not as a general rule be compelled to choose between constructions [of a treaty] determined beforehand none of which may correspond to the opinion at which it may arrive…’. In the second place, in its Judgment of 7 June 1932 in the same case (p.c.i.j., Series A/B, No. 46, p. 161), the Court said: ‘After mature consideration, the Court maintains its opinion that it would be incompatible with the Statute, and with its position as a Court of Justice, to give a judgment which would be dependent for its validity on the subsequent approval of the Parties.’ Finally the Court went on to say (at p. 162), in regard to paragraph 2 of Article 2 of the Special Agreement which would have involved a decision by the Court on questions such as specific tariff exemptions to be established, that the task thus assigned to the Court by the parties was ‘unsuitable to the role of a Court of Justice’. Moreover, the ‘interplay of economic interests’ posed questions ‘outside the sphere in which a Court of Justice, concerned with the application of rules of law, can help in the solution of disputes between two States…’. Nevertheless, it was always a matter for the determination of the Court whether its judicial functions were involved. This Court, like the Permanent Court of International Justice, has always been guided by the principle which the latter stated in the case concerning

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Such inherent limitations on the exercise of the Court’s judicial function were also mentioned in the Nuclear Tests cases: It should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’ (Northern Cameroons, Judgment, i.c.j. Reports 1963, p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.87 In the Frontier Dispute case (Burkina Faso/Niger), submitted by special agreement, the Court observed that the consent of the Parties “would not necessarily be sufficient for the Court to be able to entertain [a] request. It would still have to be verified that the object of this request falls within the Court’s judicial function, as defined by its Statute.”88 “A special agreement allows the parties to define freely the limits of the jurisdiction, stricto sensu, which they intend to confer upon the Court. It cannot allow them to alter the limits of the Court’s judicial function: those limits, because they are defined by the Statute, are not at the disposal of the parties, even by agreement between them, and are mandatory for the parties just as for the Court itself”.89 In that regard, as will be shown later, the absence of a dispute prior to seisin of the Court may preclude the latter from exercising the jurisdiction conferred upon it by the parties.90 ***

87 88 89 90

the Status of Eastern Carelia on 23 July 1923: ‘The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court’ (p.c.i.j., Series B, No. 5, p. 29)”. Nuclear Tests Case (New Zealand v. France), Judgment, icj Reports 1974, p. 463, para. 23. Nuclear Tests (Australia v. France), Judgment, i.c.j. Reports 1974, p. 259, para. 23. Frontier Dispute (Burkina Faso/Niger), Judgment, i.c.j. Reports 2013, p. 69, para. 45. Id., pp. 69–70, para. 46. See Chapter 3, infra.

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Compliance with the Judgments and Decisions of the Court

Implementation and Enforcement of the Judgments of the Court Judgments delivered by the icj have binding force for the parties concerned and are without appeal. Article 59 of the Statute of the Court provides: “The decision of the Court has no binding force except between the parties and in respect of that particular case”.91 According to Article 60 of the Court’s Statute: “The judgment is final and without appeal…”92 Articles 59 and 60 of the Court’s Statute cover all the generally acknowledged characteristics and effects of “res judicata”, i.e., on the one hand the— relative—authority of the judicial decision (or, in other words, its particular value for the parties, its binding nature as between them); and, in addition, the “force” of that finding, or the particular effectiveness attached to it as definitive and not subject to challenge or review. Such characteristics and effects are, “[a]ccording to a well-established and generally recognized principle of law”, specific to decisions handed down by “an independent and truly judicial body”.93 The Court expanded upon the nature and rationale of the principle in the Bosnian Genocide case:

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The Hague Conventions of 1899 and 1907 contained similar provisions. Article 56 (1899): “The award is only binding on the parties who concluded the compromise.” Article 84 (1907): “The award is not binding except on the parties in dispute.” This article is derived from Articles 54 and 81 of the 1899 and 1907 Conventions: “The award, duly pronounced and notified to the agents of the parties, settles the dispute definitively and without appeal.” Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Order, i.c.j. Reports 1954, p. 53: “a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute”. Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment, i.c.j. Reports 2011, p. 433, para. 67: “It is a well-established and generally recognized principle of law that a judgment rendered by a judicial body has binding force between the parties to the dispute”. See also LaGrand (Germany v. United States), Judgment, i.c.j. Reports 2001, p. 466, para. 102 (the power to decide, with binding force, for the parties forms an integral part of “the basic function of judicial settlement of international disputes”); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia-and-Montenegro), Judgment, i.c.j. Reports 2007, p. 101, para. 139 (the principle of res judicata “is required by the nature of the judicial function, and the universally recognized need for stability of legal relations”).

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…The fundamental character of [the] principle [of res judicata] appears from the terms of the Statute of the Court and the Charter of the United Nations. The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has at its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal… …Two purposes, one general, the other specific underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to ‘decide’, that is, to bring to an end, ‘such disputes as are submitted to it’. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes.94 The finality of judgments means that res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events.95

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, pp. ­90–91, paras. 115–116. Ibid., p. 93, para. 120. See also, p. 101, para. 138: “That principle signifies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case.”

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For the Court, “the judicial truth within the context of a case is as the Court has determined it, subject only to the provision in the Statute for revision of judgments”.96 Article 61 of the Court’s Statute “sets close limits of time and substance on the ability of the parties to seek the revision of the judgment”.97 Indeed, it may appear that the right of revision “affects adversely in the matter of res judicata, a point which for the sake of international peace should be considered as finally settled”.98 “Justice, however, has certain legitimate requirements.”99 While there is a general principle that disputes should not be constantly reopened in relation to the same subject-matter (ut sit finis litium),100 revision of a judgment may be required, in exceptional circumstances, when “it is in apparent contradiction to reality”,101 and such contradiction would irremediably obstruct the effective settlement of the dispute. The fact remains, however, that, 96 97

Ibid., p. 101, para. 139. Ibid., p. 90, para. 115. Article 61 (1) of the icj Statute provides: “1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.” By contrast with the provisions dealing with this question in the Conventions for the Pacific Settlement of International Dispute of 1899 (Art. 55) and 1907 (Art. 83), the power of revision of the Court, as a permanent judicial body, is independent of any specific consent to be given by the parties to the dispute in the particular case. The Committee of Jurists further added the requirement that the fact invoked for requesting a revision of the judgment must not only have been ignored by the party requesting the revision (and the Court), but also that such ignorance must not be due to its negligence. 98 Procès-Verbaux of the Proceedings of the Committee of Jurists, op cit., note 3, p. 744. 99 Ibid. 100 “Il est de l’intérêt général que les litiges ne recommencent pas indéfiniment relativement à un même objet: ut sit finis litium”, Ch. De Visscher, Aspects récents du droit procédural de la Cour internationale de Justice, 1966, Pedone, Paris, p. 178. 101 The principle of res judicata does not mean that “should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Court’s conclusions may have been based on incorrect or insufficient facts, the decision must remain final, even if it is in apparent contradiction to reality. The Statute provides for only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied”, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, pp. 92–93, para. 120.

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“in the interests of the stability of legal relations, [the conditions governing the revision of judgments] must be rigorously applied”.102 The same is true as regards requests for interpretation of the Court’s judgments.103 It should of course be borne in mind that interpretation of a judgment is essentially of a “declaratory” nature, and cannot in any way affect the finality of the decision to be interpreted.104 The power of interpretation is nonetheless relevant to the goal of effective and definitive settlement 102 Ibid. 103 Article 60 of the icj Statute provides: “ In the event of dispute [French: contestation] as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” This provision is drawn from Article 82 of the 1907 Hague Convention: “Any dispute arising between the parties as to the interpretation and execution of the Award shall, in the absence of an agreement to the contrary, be submitted to the Tribunal which pronounced it.” On the particular meaning of the word “dispute” here, see Request for interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, i.c.j. Reports 2013, pp. 295–296, para. 33. 104 The Court recently “recall[ed] that the process of interpretation is premised upon the ‘primacy of the principle of res judicata’ which ‘must be maintained’ (Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, i.c.j. Reports 1999 (i), pp. 36–37, para. 12). Accordingly, as the Court has previously held: “[t]he real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.’ (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia/Peru), Judgment, i.c.j. Reports 1950, p. 402; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, i.c.j. Reports 1999 (i), pp. 36–37, para. 12.) In as far as [a request] for interpretation ‘may go further, and seek “to obtain an answer to questions not [decided with binding force]”, or to achieve a revision of the Judgment, no effect can be given to it’ (Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, i.c.j. Reports 1985, p. 223, para. 56).” Request for interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, i.c.j. Reports 2013, pp. 303–304, paras. 55–56.

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of international disputes, since any dispute as to the meaning or scope of a Court’s Judgment may jeopardize such settlement. At the same time, a request for interpretation may not be used as a tool to bring before the Court the question of compliance with the Judgment to be interpreted, which constitutes a separate dispute. The Court, faced in interpretation proceedings with a claim asking it to declare that the Respondent had breached the Judgment whose interpretation was in dispute, stated that the only basis of jurisdiction relied upon for this claim in the present proceedings is Article 60 of the Statute, and that Article does not allow [the Court] to consider possible violations of the Judgment which it is called upon to interpret.105 * This raises the question of the means available for enforcing a Court’s Judgment, should one of the parties refuse to comply effectively with an adverse decision. As they are final and binding, the judgments of the Court, like any legal decision with these characteristics, must be complied with.106 Whether in national or international legal orders, compliance falls within the “post-jurisdictional” phase: by definition, it falls, as such, outside the scope of the court.107 However, the parallelism between the two orders goes no further than this. In ­national 105 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, i.c.j. Reports 2009, p. 20, para. 56. 106 See Société Commerciale de Belgique (Belgium v. Greece), Judgment, 1939, p.c.i.j., Series A/B, No. 78, p. 176. 107 Although the international court or arbitrator cannot, in principle, be called upon to ensure that its decisions are complied with (various proposals aiming to confer just such a responsibility on them have been rejected in the past: see Stauffenberg Statut et Règlement de la Cour Permanente de Justice Internationale—Eléments d’Interprétation, Berlin, Verlag, 1934, pp. 420–421, and see the reasons invoked by the Washington Committee of Jurists in support of its decision not to include in the icj Statute any provision relating to compliance with its judgments, 14 uncio, 1945, p. 853), it may, on the other hand, be concerned exceptionally by certain aspects of that compliance (which would be the case if a dispute on this topic were brought before it; see also, where the icj is concerned, Art. 61 (3) icj Statute, under which “the Court may require previous compliance with the terms of the judgment before it admits proceedings in revision”).

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legal orders, the court, whose jurisdiction is compulsory, acts on behalf of and in the capacity of an organ of the fully integrated sovereign state; the ­latter is responsible for the continuity and efficacy of the peace-making process initiated by the court, entrusting to other bodies stemming from it the task of automatically ensuring compliance with the judicial decision. The case is patently quite different in the international order: even if the international court concerned performs its function within the institutional framework of a universal organization, the international community in which it operates, not being integrated, or scarcely so, and remaining based on a “juxtaposition of sovereignties”,108 is in no wise comparable to a sovereign State. At the international level, where recourse to the court or arbitrator is purely consensual, the obligation to comply with their decisions derives directly and exclusively from the free choice made by those subject to their jurisdiction to submit to it; this is the application of the principle pacta sunt servanda.109 As regards compliance itself, it is, in principle, solely in the hands of those subject to that jurisdiction, general international law confining itself to imposing upon them a mandatory result,110 which they must fulfil in good faith.111 Although the specific characteristics of international society mean that it is the actual subjects of the international judicial or arbitral decision which are its natural “executors”, and although it may be presumed, in general, that the latter fully perform their duties in this respect,112 the fact nevertheless remains 108 P. Reuter, “Principes de droit international public”, Collected Courses of the Hague Academy of International Law, vol. 103 (1961-II), p. 438. 109 E. Zoller, La Bonne Foi en Droit International, Paris, Pedone, 1977, pp. 123 and 141. 110 See Haya de la Torre case, i.c.j. Reports 1951, pp. 79, 80, 82, 83. 111 The general requirement of compliance in good faith is traditionally emphasized in such cases: it has been expressed in a number of texts (see, e.g., the 1899 Convention for the Pacific Settlement of International Disputes, Art. 18 and the 1907 Convention, Art. 37 (2); League of Nations Covenant, Art. 13 (4) (see further infra); and Model Rules on Arbitral Procedure (ilc), Art. 30). Here, this requirement is thrown into particularly sharp focus in view of the crucial role played by the parties in the execution of legal decisions. It may be different in some regional organizations, in which the supervision of the execution of judgments has been entrusted to the judicial organ itself or to another body. 112 The pcij has stated on a number of occasions that it neither could nor should contemplate the contingency of a judgment remaining uncomplied with. See: S.S. “Wimbledon” (France, Italy and Japan v. Germany), Judgments, 1923, p.c.i.j., Series A, No. 1, p. 32; Readaptation of the Mavrommatis Jerusalem Concessions, Jurisdiction, No. 10, 1927, p.c.i.j., Series A, No. 11, p. 14; Factory at Chorzów, Merits, Judgment No. 13, 1928, p.c.i.j., Series A, No. 17, p. 63. As far as the icj is concerned, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1984, p. 437, para. 101; Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, i.c.j. Reports 2009, p. 267, para. 150. See also Whaling

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that this system is subject to the constraints imposed by the vicissitudes of international life, which mean that cases of non-compliance are always possible, even though, as practice shows, such cases happily remain rather rare. The subject of a legal decision who refuses to comply wholly and in good faith with a definitive and compulsory judgment is in breach of the obligations it has freely contracted and thereby commits an internationally wrongful act.113 Consequently, the injured party may, in conformity with general international law, seek to obtain compliance by its own means, by recourse to the remedies usually made available by international law for this purpose.114 Exceptional though it may be, such a situation has looked increasingly unsatisfactory, as, in the wake of greater interdependence, international society has equipped itself with institutions guaranteeing the interests of the community. The desire to remedy such shortcomings has given birth to certain collective mechanisms for “managing” these particular situations, to begin within the context of the League of Nations Covenant, and then in that of the United Nations Charter. Article 13 (4) of the Covenant laid down that: [t]he Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, i.c.j. Reports 2014, p. 70, para. 246: “The Court sees no need to order the additional remedy requested by Australia, which would require Japan to refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article viii. That obligation already applies to all States parties. It is to be expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article viii, paragraph 1, of the Convention”. 113 The question whether such a wrongful act required specific characterization has often been raised. Some have seen in it an act of particular gravity, on a par with an act of “aggression”. See, e.g., the proposal to this effect by Bolivia in San Francisco, 14 uncio, 1945, pp. 823 and 827. The reasons underpinning such an approach are easily understood; however, to date, there has been no reference to it in positive law. 114 Here, it is essentially “reprisal” and “retaliation” measures, as traditionally defined and regulated in international law, that are referred to. The individual recourse to force is banned in this context as elsewhere by Art. 2 (4) of the Charter, except in exceptional cases of “self-defence” (Art. 51). At all events, the “creditor” of the judgment or the award remains master of his rights and can, in principle, abandon those which the decision has recognized as his (cf. Hudson, The Permanent Court of International Justice 1920–1942, (2nd ed., 1972), Garland Pub., p. 588); however, the question is more delicate with respect to rights which partially escape the grasp of the “creditor” owing to their particular international projection (because they affect jus cogens, for example).

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resort to war against a Member of the League which complies herewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto. And Article 94 of the Charter reads as follows: 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. These provisions have formed the subject of many authoritative commen­taries,115 so there is little point in dwelling on them at this juncture. Their salient characteristics may be only briefly highlighted. The first sentence of the first clause, and paragraph 1 of the second clause, contain an ad hoc treaty commitment, which reinforces the obligations already placed upon the States concerned by a more general application of the norm pacta sunt servanda.116 However, whereas the clause in the Covenant, for historical 115 See e.g., S. Rosenne, “L’exécution et la mise en vigueur des décisions de la Cour internationale de Justice”, rgdip, 1953, pp. 532–583 ; P. Paone, “Considerazione Sull’Esecuzione Delle Sentenze Della Corte Internazionale di Giustizia”, In: Il processo internazionale : studi in onore di Gaetano Morelli, Communicazioni e Studi, 1975, Milano, 627–670 ; A. Pillepich, “Article 94”, in J.P. Cot, M. Forteau & A. Pellet (Eds.), La Charte des Nations Unies, 3nd ed. (2005), pp. 1987–1998, in which the travaux preparatoires of Art. 94 are examined in minute detail. 116 This commitment is therefore more a response to a desire for effectiveness than to necessity; it may sometimes be reiterated again in the special agreement by which the parties seize the Court of a dispute. See, e.g., Art. iv of the Special Agreement of 16 September 1983 between Burkina Faso and Mali, as well as the relevant observations of the Chamber in the Frontier Dispute case, i.c.j. Reports 1986, pp. 558 and 649; Article ii of the Special Agreement between Hungary and Slovakia in the case concerning the GabčíkovoNagymaros Project (Hungary/Slovakia), Judgment, i.c.j. Reports 1997, p. 7. States which are not members of the United Nations can only gain access to the Court by undertaking similar commitments imposed upon them, depending on the case, either under the resolutions adopted by the General Assembly pursuant to Art. 93 (2) of the Charter (see, e.g.,

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reasons, covers both “awards” and “decisions”,117 the clause in the Charter refers only to “the decision of the International Court of Justice”; also, whereas the former, using traditional terminology, makes it an obligation upon States to “carry out in full good faith” awards and decisions, the latter, more succinctly, makes it an obligation for them to “comply” with the decision of the icj.118 It will also be observed that the text of the Charter, no doubt echoing Article 59 of the icj Statute, is more precise than that of the Covenant as regards the determination of the holder of the obligation. The second sentence of Article 13 (4) of the Covenant clause and Article 94 (2) of the Charter clause are of more original construction: they lay down the machinery of the collective guarantee referred to above. Here too, certain discrepancies between the two texts should be pointed out: to begin with, the conditions intended to trigger the mechanism are described much more vaguely in the former, which envisages merely an impersonal failure to comply; further, although, under the Covenant clause, the Council of the League of Nations may act unilaterally, under the Charter clause, the intervention of the Security Council is subject to a request by one of the parties;119 lastly, whereas, in the former clause, the General Assembly resolution 91 (1), conditions (a) and (b)), or under Security Council resolution 9 (1946) adopted pursuant to Art. 35 (2) of the Statute, cf. supra, Sect. 1 (a). 117 The special place assigned to arbitration in the system of the peaceful settlement of disputes created by the Covenant is well known; on the other hand, it should also be recalled that, although the Covenant provided for the creation of the pcij, the latter was set up after the Covenant’s entry into force. Not until 1924 was Art. 13 (4) of the Covenant amended to cover judicial decisions, not without a certain amount of debate (see Statut et Règlement de la Cour Permanent de Justice Internationale—Eléments d’Interprétation, op. cit. note 107, p. 421). 118 However, the two expressions should be regarded as synonymous. Although the travaux préparatoires of Art. 94 provide no explanation on this question (see the proposal instigated by Australia, 14 uncio, 1945, p. 553), it is inconceivable that the authors intended to abandon the general requirement of good faith. See also, on this topic, Security Council Resolution 9, supra note 116, para. 1. 119 In the very “legalistic” context of the time, the onus was on the Council of the League of Nations more or less automatically to supervise the action taken on arbitral and judicial decisions. Where the Security Council is concerned, the question has often been asked whether the powers conferred upon it by Art. 94 (2) of the Charter are autonomous in nature or, on the contrary, are no more than a particular manifestation of the general powers it derives from the other provisions of the Charter. See, e.g., A. El Ouali, Effets juridiques de la sentence internationale, Paris, Librairie générale de droit et de jurisprudence, 1984, pp. 184–186; A. Giardina, “La mise en œuvre au niveau national des arrêts et des décisions internationaux”, Collected Courses of The Hague Academy of International Law, vol. 165

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League of Nations Council is under an obligation to act, but can merely make proposals, where the latter is concerned, the Security Council is granted a very broad measure of discretion (it “may” act “if it deems necessary”), while nevertheless being empowered not only to make recommendations but also to take decisions.120 Generally, the Court’s judgments, even the most delicate in political terms, tend to be executed in a timely manner and without contestation by the Parties. However, in exceptional circumstances, it has happened that specific difficulties or differences between the Parties have delayed the implementation of the Court’s judgment.121 Such delays have sometimes been attributed to alleged difficulties, encountered by one of the Parties in introducing the judgment in its domestic legal system, relating to the municipal form of government (federalism) or to the

(1979), p. 255. The travaux préparatoires do not provide sufficient basis for a reply to this question. However, it would seem logical to consider the powers in question as autonomous, for, failing that, it is hard to see why the authors of the Charter should have taken the trouble to draft the clause concerned, inserted into Chapter xiv (“International Court of Justice”). One can only conclude that the Council remains free, when exercising its other powers, to unilaterally consider a matter of compliance with a judgment of the Court, when the conditions laid down for the exercise of those powers (under Chapter vi or Chapter vii of the Charter) are met. Similarly, the existence of specific machinery for ensuring compliance with the judgments of the Court under Art. 94 (2) of the Charter does not prevent other organs—in particular the General Assembly—from being able to intervene under the relevant provisions of the Charter in the event of failure to comply with such a judgment. See, e.g., General Assembly resolutions 41/31 (1986); 42/18(1987); 43/11(1988); and 44/43 (1989), relating to the application of the Judgment of the Court of 27 June 1986 in the Nicaragua case. 120 The Council is sole judge of the political expediency of intervening as well as of the modalities of such intervention. However, it cannot, in so doing, ignore the res iudicata, which cannot be questioned. See, for a contrary view, Paone, “Considerazioni sull’esecuzione delle sentenze della Corte internazionale di Giustizia”, in Il processo internazionale: studi in onore di Gaetano Morelli, 1975, Communicazione e Studi, pp. 644–645, 655–656. Practice has confirmed the fact that, in the exercise of the autonomous power envisaged here, the right of veto applies. See un docs. S/18221, S/18227, S/18230, S/18250, S/18419, and S/18428, 1986; and un docs. S/PV.2700 to 2704, and S/PV.2718, 1986. See also 1986–1987 i.c.j. Yearbook, p. 176. 121 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, i.c.j. Reports 1949, p. 244; Military and Paramilitary Activities in and against Nicaragua, Order of 26 September 1991, i.c.j. Reports 1991, p. 47.

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independence of the judiciary.122 Obviously, a State cannot invoke provisions of its internal law in order to exonerate itself from its international obligations, should they derive from its acceptance of the jurisdiction of the Court or of international law in general, i.e., the principle pacta sunt servanda.123 As already mentioned, the icj Statute does not include any provision relating to compliance with its judgments. While the Court should not, in principle, concern itself with the implementation of its own decisions, it may, nonetheless, be called upon to deal exceptionally with some aspects thereof, when they happen to form the subject-matter of another dispute submitted to it. For example, Nicaragua recently instituted proceedings against Colombia with regard to a dispute concerning the alleged violations of Nicaragua’s sovereign rights and maritime zones declared by the Court’s Judgment of 19 November 2012 in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia). In its Application, filed in the Court on 26 November 2013, Nicaragua invoked, primarily, its sovereign rights and jurisdiction in the maritime zones as delimited by the Court in its Judgment, and requested the Court to declare that Colombia is bound by this Judgment.124 Interestingly, Nicaragua based the jurisdiction of the Court, not only on the compromissory clause of the “Pact of Bogotá” (the American Treaty on Pacific Settlement, signed on 30 April 1948), to which “[b]oth Nicaragua and Colombia are parties”,125 but also 122 See the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, i.c.j. Reports 2009, p. 3. Cf. mutatis mutandis, in the context of “binding” advisory opinions, 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. 62, infra, sect. 3. On a very different level, following the Court’s Judgment in the Territorial and Maritime Dispute (Nicaragua v. Colombia), Colombia’s President declared that the decision was non applicable in Colombia in the absence of a treaty which would be required, in accordance with Colombia’s constitution, in order to “modify” territorial and maritime boundaries of that State; see Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Application instituting proceedings filed in the Registry of the Court on 26 November 2013, p. 12, para. 13 [http://www.icj -cij.org/docket/files/155/17979.pdf]. 123 See 1969 Vienna Convention on the Law of Treaties, Art. 27. See also Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012 (ii), p. 460, para. 113. 124 Supra note 122. 125 Nicaragua referred to the fact that “on 27 November 2012, Colombia gave notice that it d­ enounced as of that date the Pact of Bogotá”, but considered that, “in accordance

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on the Court’s “inherent power to pronounce on the actions required by its Judgments”.126

The Binding Character of the Court’s Orders on Provisional Measures The binding character of Court’s decisions other than judgments127 has been subject to much doctrinal interrogations, and it proved to be in practice of importance for the effective settlement of international disputes.128 In particular, the legal effects of the orders by which the Court indicates provisional measures to the parties under Article 41 of its Statute has been questioned for a long time. It was only in 2001 that the Court finally determined expressis verbis that such

with Article lvi of the Pact, that denunciation [would] take effect after one year, so that the Pact [would] cease to be in force for Colombia after 27 November 2013”, ibid., p. 22, para. 17. 126 Ibid., para. 18. 127 The straightforward distinction between the effects of orders and that of judgments drawn by the Permanent Court has sometimes prompted the view that orders have no binding effect (“orders made by the Court, although as a general rule read in open Court, due notice having been given to the Agents, have no ‘binding’ force (Article 59 of the Statute) or ‘final’ effect (Article 60 of the Statute) in deciding the dispute brought by the parties before the Court”, Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, p.c.i.j., Series A, No. 22, p. 13). It seems reasonable to consider, however, that, by expressly adding the words “in deciding the dispute”, the pcij did not mean to exclude that an order may constitute a (binding) decision for different purposes (other than Articles 59 and 60). It rather meant that an order cannot be res judicata like a judgment, which is a different issue. Concerning the binding character of decisions of the Court in matters of procedure, see Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), Judgment of 11 September 1992, i.c.j. Reports 1992, p. 581, para. 371: “The Chamber must emphasize that States engaged in proceedings before the Court or a Chamber are under a duty to conform with all decisions as to procedure, which the Court is specifically empowered to make by Articles 30 and 48 of its Statute”. 128 While non-compliance with the Court’s judgments appears to be extremely rare, noncompliance with orders on provisional measures has been observed in a number of cases in the 1970s (in cases where the Respondent States often even refused to take part in the proceedings, arguing that the Court lacked jurisdiction), and again more recently, LaGrand (Germany v. United States), Judgment, i.c.j. Reports 2001, pp. 463, and 516, para. 128 (5); Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, i.c.j. Reports 2009, p. 21, para. 61 (2).

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orders have binding effect129 (and, therefore, that their breach may entail the international responsibility of the non-complying State). Orders on provisional measures under Article 41 of the Court’s Statute are designed to preserve the respective rights of the parties pending the final decision on the merits of the dispute. In this respect, provisional measures indicated by the Court fulfil an important function, in that they safeguard the possibility for the final decision to “have some practical consequence in the sense that it [the judgment to be rendered] can affect existing legal rights or obligations of the parties”.130 Accordingly, the Court has the power to indicate provisional measures “when irreparable prejudice could be caused to rights which are the subject of the judicial proceedings before it”, and it will exercise such power “only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision”.131 The power to indicate provisional measures, although explicitly grounded in the Statute of the Court (as well as that of its predecessor), has traditionally appeared to be rather “exceptional”, in that it could result in the imposition of restrictions on the freedom of sovereign States in the course of judicial (or arbitral) proceedings, at a stage when the Court (or an arbitral tribunal) could not yet have satisfied itself that it had jurisdiction to settle the dispute (i.e., that the States concerned had actually consented to its jurisdiction) and that the claims submitted to it were well-founded in fact and law.132 In such a context, the issue of the binding nature of measures indicated by the Court under Article 41 was bound to be a very sensitive and controversial one. The source of the legal controversy resided mainly in the ambiguous ­wording of the relevant provisions of the Charter and the Statute of the 129 LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 506, para. 109. 130 Northern Cameroons Case (Cameroon v. United Kingdom), Preliminary Objections, Judgment, i.c.j. Reports 1963, p. 34. 131 Questions relating to the seizure and detention of certain documents and data (Timor-Leste v. Australia), Request for the Indication of Provisional Measures, Order of 3 March 2014, paras. 31–32 (referring also to Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, i.c.j. Reports 2011 (i), p. 21, paras. 63–64). 132 In view of the “exceptional character” of provisional measures, the Court has developed several stringent conditions for their indication, relating in particular to its jurisdiction prima facie to rule on the merits of the case, and to the plausibility of the rights whose protection is sought (see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, i.c.j. Reports 2009, p. 151, para. 57).

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Court, and revolved essentially around the interpretation of Article 41 itself.133/134 Faced with two versions of Article 41, each authentic in its own language, but not in total harmony with each other,135 the Court referred to Article 33 (4) of the Vienna Convention on the Law of Treaties, which provides that “when a comparison of the authentic texts discloses a difference of meaning…the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”.136 The Court accordingly adopted a teleological approach, based on the fact that “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

133 The English text 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. The French text of Article 41 reads as follows: 1. La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire. 2. En attendant l’arrêt définitif, l’indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité. “While the terms “indiquer” and “l’indication” used in the French text of Article 41 may be deemed to be neutral as to the mandatory character of the measure concerned, and, by contrast, the words “doivent être prises” have an imperative character, the use in the English version of “indicate” instead of “order”, of “ought” instead of “must” or “shall”, and of “suggested” instead of “ordered”, could be understood as implying that “decisions” under Article 41 lack mandatory effect”, LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, pp. 501–502, para. 100. 134 The Court itself sometimes used ambiguous language regarding the effects of its orders on provisional measures: “When the Court finds that the situation requires that measures of this kind should be taken, it is incumbent on each party to take the Court’s indication seriously into account…” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, i.c.j. Reports 1986, p. 144, para. 289; emphasis added); see also 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, i.c.j. Reports 1993, p. 349, para. 58. 135 In this connection it should be borne in mind that most of the provisions of the Statute, including Article 41, were originally drafted in French by the 1920 Committee of Jurists, before being translated into English. 136 LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 502, para. 101.

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settlement of international disputes by binding decisions in accordance with Article 59 of the Statute”.137 Thus it stated: The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court.138 The Court moreover resorted to the preparatory work of the Statute and pointed out that the travaux préparatoires of Article 41 do not preclude the conclusion that orders under this provision have binding force.139 After a careful examination,140 the Court came to the conclusion that: 137 Ibid., p. 502, para. 102. 138 Ibid., pp. 502–503, para. 102. The Court continued: “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, i.c.j. Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim Protection, Order, i.c.j. Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order, 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, 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, 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, i.c.j. Reports 1996 (i), pp.  22–23, para. 41, and p. 24, para. 49 (1)).” (Ibid., p. 593, para. 103.) 139 Ibid., pp. 503–504, para. 104. 140 Ibid., pp. 504–505, paras. 105–106.

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The preparatory work of Article 41 shows that the preference given in the French text to ‘indiquer’ over ‘ordonner’ was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders.141 Since the Court reached this general conclusion,142 it has been called several times to decide on the compliance by States with measures indicated by it.143 141 Ibid., p. 505, para. 107. The Court finally considered whether Article 94 of the un Charter precludes attributing binding effect to orders indicating provisional measures. The question arose as to the meaning to be attributed to the words ‘the decision of the International Court of Justice’ in paragraph 1 of this Article (see supra). 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. Without deciding of the proper interpretation of Article 94 of the un Charter, the Court concluded that none of them would prevent orders made under Article 41 from having a binding character. Ibid., p. 505, para. 108. 142 The Court has reiterated this conclusion on various occasions. See Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Provisional measures, Order, i.c.j. Reports 2013, p. 368, para. 57: “The Court reiterates that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 506, para. 109) and thus create international legal obligations with which both Parties are required to comply (see, for example, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order, i.c.j. Reports 2011 (i), pp. 26–27, para. 84). It further recalls that the question of compliance with provisional measures indicated in a case may be considered by the Court in the principal proceedings (see Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order, i.c.j. Reports 2012, p. 7). The Court also observed that its finding, in 2001, concerning the binding effect of orders on provisional measures did not affect the binding nature of those Orders rendered prior to that date, “since in the [LaGrand Judgment] the Court did no more than give the provisions of the Statute the meaning and scope that they had possessed from the outset” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Serbia-and-Montenegro), Merits, i.c.j. Reports 2007, p. 230, para. 452)”. 143 LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, pp. ­506–508, paras. 111–116; Application of the Convention on the Prevention and Punishment of the Crime

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A noticeable feature of provisional measures lies in the fact that, under Article 41 (2), “notice of the measures suggested [by the Court] shall forthwith be given…to the Security Council”. This raises the question of what action the Security Council can take in the event of non-compliance with an order of the Court, given that Article 94 (2) refers only to recommendations or measures which the Security Council may make or take, if it deems necessary, to give effect to a “judgment”.144 In fact, this “technical” issue has no real practical significance, since the Council is in any event entitled to take all necessary measures if it deems that the failure to comply with the Court’s order is likely to threaten international peace and security.145 It raises, however, the question of the relationship between two principal organs of the un in discharging their respective responsibilities with regard to the same situation or conflict.146 3

The Court’s Advisory Jurisdiction as Part of Its Judicial Function

Whereas the Court’s advisory jurisdiction has been considered from the outset as wholly distinct from the contentious, consensual jurisdiction of the Court, it was never envisaged that the Court would not be performing a proper judicial function when giving advisory opinions.147 The advisory function of the International Court of Justice is rooted in Article 14 of the Covenant of the League of Nations, which was intended to provide the Council and the Assembly with the opportunity of requesting an advisory opinion from the Permanent Court on “any dispute or question”. Article 96 of the un Charter provides: of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro), Merits, Judgment, i.c.j. Reports 2007, pp. 230–231, paras. 451–458; Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, i.c.j. Reports 2009, p. 21, para. 61 (2). 144 See G. Guillaume, “Enforcement of Decisions of the International Court of Justice”, in Perspectives on International Law, Nandasiri Jasentuliyana (ed.), London; Boston: Kluwer, 1995, pp. 275–288 (“[i]n practice, it should be noted that, while cases involving refusal to carry out such orders have frequently been submitted to the Security Council, it has never actually been claimed before the Security Council that such refusal came within the scope of Article 94, paragraph 2”, p. 283, and the references given). 145 See supra, note 119, in case of Judgments. 146 See infra Chapter 3. 147 The term “advisory opinion” denotes in English legal terminology the exercise of a judicial function. See D. Hunter Miller, The Drafting of the Covenant, New York: G.P. Putnam’s sons, 1928, p. 406.

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1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities. Pursuant to Article 65 (1) of the Court’s Statute: The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. There are several differences between the relevant provisions at the time of the Permanent Court and the present situation regarding the effective scope of the Court’s advisory jurisdiction (a). Overall, however, a large measure of continuity has prevailed with respect to the nature and function of the advisory jurisdiction of both Courts, if not always in the actual exercise of such jurisdiction (b). (a) The Scope of the Court’s Advisory Jurisdiction The drafters of the Charter expanded the Court’s jurisdiction ratione personae, with 21 organs and agencies now able to avail themselves of the advisory function.148 Yet, ratione personae, the Court’s jurisdiction in advisory cases may still appear as relatively restricted; indeed, Article 96 (2) of the Charter expressly limits it to the “organs of the United Nations and specialized agencies”. Hence, neither (quasi-) universal organizations which do not belong directly to the United Nations system, nor regional organizations have access to the Court in its advisory capacity.149 For a number of years, the question of the possible access by the Secretary-General to the advisory procedure has been considered in various United Nations fora.150 Secretary-General Boutros Boutros-Ghali, 148 Only four agencies, authorized by the General Assembly, in accordance with Article 96, paragraph 2, of the Charter, have to date exercised this facility (unesco, imo, who and ifad). 149 The Washington Committee of Jurists had favoured a particularly restrictive approach in this respect, fearing that providing broad access to the Court might have entailed an uncontrolled increase in requests for opinions. See 14 uncio, 1945, pp. 181–183. 150 See, e.g., on this question, S.M. Schwebel, “Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice”, American Journal of International Law (1984), pp. 869–878; C.-A. Fleischhauer, “The Constitutional

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among others, called for the adoption by the General Assembly of a decision which would authorize him, pursuant to Article 96 (2) of the un Charter, to request advisory opinions of the Court.151 As regards the Court’s advisory jurisdiction ratione materiae, it would appear, on the contrary, to be defined in rather broad terms. Under Article 96 (1) of the Charter, the General Assembly and the Security Council may, in view of their “general” powers, request the Court to give an opinion “on any legal question”.152 Paragraph 2 of the same article restricts this power in the case of “other organs of the United Nations and specialized agencies” to “legal questions arising within the scope of their activities”.153 ­ elationship between the Secretary-General of the United Nations and the International R Court of Justice”, in Boutros-Boutros Ghali Amicorum Discipulorumque liber, Bruxelles: Bruylant, 1998, pp. 451–474. 151 “An Agenda for Peace. Preventive Diplomacy, Peacemaking and Peace-keeping”, Report of the Secretary-General pursuant to the Statement adopted by the Summit Meeting of the Security Council on 21 January 1992, A/47/277-S/24111, para. 38. See also, e.g., the Statement by H.E. Mohammed Bedjaoui, President of the International Court of Justice, to the General Assembly, Fiftieth Session (1995), i.c.j. Yearbook 1995–1996, p. 270. 152 See, e.g., Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, i.c.j. Reports 1982, p. 325. However, in its advisory opinion relating to the Legality of the Threat or Use of Nuclear Weapons, the Court proceeded to examine to what extent the questions posed arose within the scope of the activity of the ga, in light both of the provisions of the Charter and of the practice of the Assembly, i.c.j. Reports 1996, p. 232, para. 11. Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 145, para. 15; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010, p. 413, para. 20 et s., in particular para. 24: “it was suggested that, since the Security Council was seised of the situation in Kosovo, the effect of Article 12, paragraph 1, was that the General Assembly’s request for an advisory opinion was outside its powers under the Charter and thus did not fall within the authorization conferred by Article 96, paragraph 1. As the Court has stated on an earlier occasion, however, ‘[a] request for an advisory opinion is not in itself a “recommendation” by the General Assembly “with regard to [a] dispute or situation”’ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 (i), p. 148, para. 25). Accordingly, while Article 12 may limit the scope of the action which the General Assembly may take subsequent to its receipt of the Court’s opinion (a matter on which it is unnecessary for the Court to decide in the present context), it does not in itself limit the authorization to request an advisory opinion which is conferred upon the General Assembly by Article 96, paragraph 1”. 153 It is because the Court considered that the question of legality of the use of nuclear weapons (contrary to that of the consequences on the health of the use of such weapons) did not arise within the scope of activity of who, as a specialized agency, that

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Although Article 96 of the Charter and Article 65 of the Statute refer solely to the Court’s power to give opinions on a “legal question”—unlike Article 14 of the League of Nations Covenant, which expressly referred to “any dispute or question”—both the travaux préparatoires of these provisions and the practice of the Court show that it is fully entitled to exercise its advisory function in the context of a dispute having actually arisen, whether between States themselves or with the applicant organization. Confirmation of this is provided, among other things, in Article 68 of the Statute154 and Article 102 (2) of the present Rules of Court, which states that the Court shall consider whether a request for an advisory opinion relates to a legal question “actually pending between two or more States”, and apply, as appropriate, the provisions of the Statute and of the Rules applicable in contentious cases. This has raised particular questions, which will be addressed later (see below (b) Nature and function of the advisory jurisdiction). * Mention should be made here of the hybrid procedure, referred to as “compulsory/binding advisory opinions”, which was devised, at the time of the establishment of the United Nations, mainly in order to circumvent the lack of access of international organizations to the Court’s contentious jurisdiction. It provides for the incorporation into certain treaties, including those involving the un, of ad hoc clauses whereby, in the event of a dispute between the international organization and the States specified therein, that organization would request the Court for an advisory opinion, which the two parties agree would have a “decisive” or “binding” effect. The first such “compulsory advisory opinion clause” was included in Section 30 of the 1946 Convention on the Privileges and Immunities of the United Nations and in Section 32 of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies. A similar provision was included in the 1947 Agreement between the United Nations and the United States regarding the Headquarters of the United Nations. The 1986 Vienna Convention on the the Court concluded that it had no jurisdiction to give the opinion requested, see Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, i.c.j. Reports 1996, pp. 76–81, paras. 21–26. 154 Taken over from the pcij 1936 Statute, this provision reads as follows: “In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.”

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Law of Treaties between States and International Organizations or between International Organizations (not yet in force) also provides, in Article 66, for the settlement of disputes relating to the application or the interpretation of its Articles 53 and 64 (treaties conflicting with a peremptory norm of general international law—jus cogens) under the compulsory advisory opinion procedure. * A somewhat similar procedure has been set up in order to provide for the review by the Court of judgments of certain international administrative tribunals.155 These tribunals are entrusted with the settlement of disputes between international organizations and members of their staff with respect to the latter’s contracts and conditions of appointment and employment. Such is the case of the Administrative Tribunal of the International Labour Organization, which has jurisdiction over appeals by staff of almost 60 organizations. The Statute of that tribunal provides that, in certain cases where the validity of a judgment is contested on specific grounds, an advisory opinion may be requested from the icj, and will then be binding.156 This was also the case with the United Nations Administrative Tribunal, until, by a resolution adopted on 11 December 1995, the General Assembly decided, with effect from 1 January 1996, to delete Article 11 of the Tribunal’s Statute, which provided for the review 155 The Court has given five advisory opinions under this procedure: once at the request of the Executive Board of Unesco ( Judgments of the Administrative Tribunal of the ilo upon Complaints Made against Unesco), three times at the request of the Committee on Applications for Review of Judgments of the Administrative Tribunal of the United Nations (Application for Review of Judgment No. 158 of the Administrative Tribunal of the United Nations, Application for Review of Judgment No. 273 of the Administrative Tribunal of the United Nations, Application for Review of Judgment No. 333 of the Administrative Tribunal of the United Nations), and once at the request of the International Fund for Agricultural Development (“ifad”), a specialized agency of the United Nations, concerning a judgment rendered by the Administrative Tribunal of the ilo. 156 Article xii of the Statute of the ilo Administrative Tribunal provides: “1. In any case in which the Executive Board of an international organization [subject to the jurisdiction of the Tribunal] challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice. 2. The opinion given by the Court shall be binding”.

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procedure.157 The un Administrative Tribunal was replaced in July 2009 by the un Dispute and Appeals Tribunals. The technique of “compulsory advisory opinions” has attracted some criticism. However useful it may be, it can only be a makeshift arrangement, and cannot diminish the need to consider ways to allow a direct access by international organizations to the contentious procedure. Apart from the procedure’s restricted scope, and the hazards that can always affect the constitution of a sufficient majority in favour of seisin of the Court within the competent organs of the organization concerned, it should be borne in mind that, while the opinions given in that context have a “binding” or “decisive” value for the parties by virtue of their collateral arrangements, they nonetheless remain, by their very nature, mere responses to questions put to the Court and lack the authority and force of res judicata that is ascribed to the Court’s judgments by Articles 59 and 60 of the icj Statute; nor are they covered by the provisions of Article 94 of the un Charter.158 The shortcomings of this procedure have been particularly apparent whenever the Court is called upon to review decisions of administrative tribunals. First, it has been stressed that the Court is “caught between two conflicting requirements. On the one hand, it must scrupulously avoid the temptation to carry out any of the functions which might be proper to an administrative appeal court, but which would be wholly incompatible with its nature as the s­ upreme judicial organ of the United Nations, whose role is to 157 Under the former Article 11 (1), a Member State, the Secretary-General or the person in respect of whom a judgment had been rendered might object to the judgment “on the ground that the Tribunal ha[d] exceeded its jurisdiction or competence or that the Tribunal ha[d] failed to exercise jurisdiction vested in it, or ha[d] erred on a question of law relating to the provisions of the Charter of the United Nations, or ha[d] committed a fundamental error in procedure which ha[d] occasioned a failure of justice”. Besides the limited grounds upon which a judgement could be challenged under this procedure, which distinguished it from a proper appeal, and was closer to cassation under the civil law system, the request for an advisory opinion of the Court had to be approved by a special Committee of the General Assembly, and was therefore not available as of right to staff members of the Organization. 158 Ph. Couvreur, “The Effectiveness of the International Court of Justice in the Peaceful Settlement of International Disputes”, In: The International Court of Justice : its future role after fifty years, A.S. Müller et al. (eds.), The Hague/Boston/London: Martinus Nijhoff Publishers, 1997, p. 89, note 14. See also Statement by H.E. Mohammed Bedjaoui, President of the International Court of Justice, to the General Assembly, Fiftieth Session, 1995, i.c.j. Yearbook 1995–1996, p. 268: “The technique referred to as that of ‘compulsory advisory opinions’—whose very name underlines its singularity—is, however, no more than a stopgap, which cannot be a substitute for full access by organizations with international legal personality to the contentious procedure of the Court.”

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settle ­international legal disputes between States. On the other hand, given the ­narrow limits to which its powers of appraisal in such cases are confined… by the governing texts…it can scarcely be denied that the Court has very little scope for exercising any decisive concrete influence in the interest of ensuring that administrative justice is genuinely done”.159 Secondly, the shortcomings of the review procedure itself have been emphasized. In its most recent advisory opinion, dated 1 February 2012, the Court followed the practice established during earlier similar requests by providing an opportunity to the official directly concerned by the request (i.e., party to the judgment of the iloat whose validity was challenged by the International Fund for Agricultural Development) to state her views under the same conditions as the international organization which had originally requested the advisory opinion. The Court nevertheless expressed its concern about the review procedure and, in particular, “about the inequality of access to the Court arising from the review process under Article xii of the Annex to the Statute of the iloat”,160 since it is only the employing agencies which are able to initiate advisory proceedings. The Court thus made “one general observation about the development of the concept of equality before courts and tribunals…”,161 stating that “[t]hat principle must now be understood as including access on an equal basis to available appellate or similar remedies unless an exception can be justified on objective and reasonable grounds”.162 The Court noted in particular: the significant differences between the two General Comments by the Human Rights Committee on Article 14, paragraph 1, of the International Covenant on Civil and Political Rights of 1966. That provision requires that ‘[a]ll persons shall be equal before the courts and tribunals’. The first Comment, adopted in 1984, just seven years after the Covenant came into force, did no more than repeat the terms of the provision and call on States to report more fully on steps taken to ensure equality before the courts, including equal access to the courts (Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), paras. 2–3). The later Comment, one adopted in 2007 on the basis of 30 years 159 Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, i.c.j. Reports 1987, separate opinion of Judge Ago, pp. 107–108, para. 4. 160 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, i.c.j. Reports 2012 (i), p. 31, para. 48. 161 Ibid., pp. 26–27, para. 38. 162 Ibid., p. 29–30, para. 44.

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of experience in the application of the above-mentioned Article 14, gives detailed attention to equality before domestic courts and tribunals. According to the Committee, that right to equality guarantees equal access and equality of arms. While in non-criminal matters the right of equal access does not address the issue of the right of appeal, if procedural rights are accorded they must be provided to all the parties unless distinctions can be justified on objective and reasonable grounds (Human Rights Committee, General Comment No. 32: Right to equality before courts and tribunals and to a fair trial, paras. 8, 9, 12 and 13). In the case of the iloat, the Court is unable to see any such justification for the provision for review of the Tribunal’s decisions which favours the employer to the disadvantage of the staff member.163 (b) Nature and Function of the Court’s Advisory Jurisdiction It is of the essence of the Court’s advisory opinions that they are advisory, i.e., that, unlike the Court’s judgments, they have no binding effect: The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with law. These opinions are advisory, not binding.164 The present Court has very clearly emphasized the particular nature of its power to respond to requests for advisory opinion. Summarizing its earlier jurisprudence on this question, the Court thus noted that the exercise of its advisory jurisdiction represents its participation in the activities of the Organization and, in principle, a request should not be refused (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, i.c.j. Reports 1950, pp. 71–72). That indication of a strong inclination to reply is also reflected in the Court’s later statement…that ‘compelling reasons’ would be required to justify a refusal (1956 Advisory Opinion, i.c.j. Reports 1956, p. 86);165 163 Id., p. 27, para. 39. On the date of finalization of the present text (October 2015), the IL­O was considering the possibility of removing Article XII from the Statute of the Administrative Tribunal of the International Labour Organization. 164 Applicability of Article vi, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, i.c.j. Reports 1989, p. 188, para. 31. 165 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural ­Development,

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and the purpose of the advisory jurisdiction is to enable organs of the United Nations and other authorized bodies to obtain opinions from the Court which will assist them in the future exercise of their functions.166 Nonetheless, the Court has made it clear that its “authority to give advisory opinions must be exercised as a judicial function”.167 It has always been considered, notwithstanding the obvious differences between the definitive settlement of a dispute and a mere advisory opinion, that the Court’s advisory jurisdiction should offer the same guarantees, mutatis mutandis, as that offered to the States concerned in contentious proceedings. As has already been pointed out, the wide scope ratione materiae of the Court’s advisory jurisdiction may result in its being seised of a “legal question” which arose in the context of, or is related to, an existing legal dispute between States. It could thus happen that a request for advisory opinion of the Court would involve a decision by the Court to rule on that dispute, or certain aspects thereof, without the consent of the States concerned. In such cases, the power of the Court to respond to such a Request could be challenged, and frequently has been. Faced with such challenges to its jurisdiction, the icj first drew a formal distinction between the principles governing its contentious and advisory jurisdictions: 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 A ­ dvisory Opinion, i.c.j. Reports 2012 (i), p. 25, para. 33. See also Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010, pp. 416, para. 30, and 417, para. 33. 166 Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010 (ii), p. 421, para. 44. 167 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, i.c.j. Reports 1963, p. 30. See also Status of Eastern Carelia, Advisory Opinion, 1923, p.c.i.j., Series B, No. 5, p. 29: “The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding [its] activities as a Court”; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, i.c.j. Reports 2010, p. 16, para. 29; Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, i.c.j. Reports 2012 (i), p. 25, para. 34: “The Court and its predecessor have emphasized that, in their advisory jurisdiction, they must maintain their integrity as judicial bodies.”

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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.168 The Court nonetheless admitted that: “[t]here are certain limits…to the Court’s duty to reply to a Request for an Opinion. It is not merely an ‘organ of the United Nations,’ it is essentially the ‘principal judicial organ’ of the Organization (Art. 92 of the Charter and Art. 1 of the Statute)”.169 Taking advantage of the permissive wording of Article 65 of its Statute (“The Court may give an advisory opinion”), the Court considered that it has “the power to examine whether the circumstances of the case are of such character as should lead it to decline to answer the Request”.170 It recalled that such a situation had arisen before the Permanent Court of International Justice in the Eastern Carelia case (Advisory Opinion No. 5), when that Court declined to give an Opinion because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties, and that at the same time it raised a question of fact which could not be elucidated without hearing both parties.171 But the Court also pointed out that, in that particular case, “one of the States concerned was neither a party to the Statute of the Permanent Court nor, at the time, a Member of the League of Nations, and lack of competence of the League to deal with a dispute involving non-member States which refused its intervention was a decisive reason for the Court’s declining to give an 168 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, i.c.j. Reports 1950, p. 71. 169 Ibidem. 170 Ibid., p. 72. 171 Idem.

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answer”.172 The Court therefore recognized that, in exercising its discretion whether to reply to a request for an advisory opinion, and “in relation to the opposition of some of the interested States, [it has to examine] the question of the judicial propriety of giving an opinion”.173 Thus it “recognized that the lack of consent[, although not affecting its advisory jurisdiction,] might constitute a ground for declining to give the opinion requested…”.174 In practice, the icj has never declined to give an advisory opinion on this ground. However close the apparent relationship between a “legal question” and an existing dispute between two or more States, it is nonetheless, first and foremost, divergences of views within the membership of the organization (or organ) concerned which prompt any request for an advisory opinion. The Court may accordingly conclude that the request does not relate exclusively to a bilateral dispute as such, and that the benefit to be derived from its participation in the activities of the organization, by way of an advisory opinion, outweighed objections by the States having a specific interest in the matter.175 * The advisory procedure provides a unique opportunity for the Court to pronounce on the interpretation to be given to provisions of the Charter, as well as on other legal questions arising within the context of the activities of organs of the United Nations and specialized agencies of the United Nations system. Advisory opinions of the International Court of Justice, like judgments, quite naturally form part of the Court’s jurisprudence. The Court’s contribution, by way of advisory opinions, to the clarification and development of international law has been a significant feature of the judicial practice of the icj, especially at a time when States were notably reluctant to submit their disputes to the Court. Some of those opinions will be discussed later.176 Although the question of the action to be taken on the Court’s rulings is by definition posed in terms which are quite different depending on whether judgments or advisory opinions are involved, since the latter are in essence non-binding, it should be emphasized that, in most cases, due account has been taken by the requesting organs of the opinion given, and that many of 172 173 174 175

Western Sahara, Advisory Opinion, i.c.j. Reports 1975, p. 27, para. 30. Ibid., p. 24, para. 32. Ibid., p. 25. Ibid., para. 34. See also, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 159, para. 50. 176 In Parts iii and iv.

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the Court’s advisory opinions have had a substantial impact on the settlement or adjustment of the situations which had prompted recourse to it. Yet issues of compliance with an advisory opinion may also arise, and in a very similar manner as in the case of judgments, should the binding effect of the opinion be provided for in a specific treaty. For example, in the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, the Malaysian Government invoked the independence of its judiciary in order to justify the fact that the lawsuits engaged before Malaysian courts against the un expert concerned were not dismissed, following the advisory opinion in which the Court had found that the Special Rapporteur was entitled to immunity from legal process, and “that the Government of Malaysia ha[d] the obligation to communicate the advisory opinion to the Malaysian courts in order that Malaysia’s international obligations be given effect and [in order that] Dato’ Param Cumaraswamy’s immunity be respected”.177 The matter had to be brought to the attention of the Malaysian Government by the un Legal Counsel and by the Secretary-General, and it was further considered by the Economic and Social Council,178 before the lawsuits were eventually withdrawn. Despite the fact that they lack binding force, advisory opinions effectively contribute to the functioning of the United Nations and to the exercise of their functions by the requesting bodies. The authority attaching to the Court’s pronouncements and the duty on those who go to the Court to take due account of the opinion given by it undoubtedly contribute to ensuring that the advisory function is a particularly valuable instrument in “guid[ing] all of [the] activities [of the organs of the United Nations] and accord[ing] predictability and legitimacy to their actions”.179 However, relatively little use has been made of the advisory opinion procedure under the icj regime. Whereas the pcij handed down 27 advisory opinions in just 13 years, from 1922 to 1935, the icj has given the same number during its entire existence since 1946. In the era of the League, only the Council availed itself of this power. Since 1947, by contrast, it is above all the un 177 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, i.c.j. Reports 1999, pp. 89–90, para. 67. 178 i.c.j. Yearbook 1999–2000, pp. 280–283. 179 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, adopted 24 September 2012, A/RES/67/1, para. 2. Although this paragraph does not address the role of the Court’s advisory jurisdiction as such, but that of the “rule of law”, it may easily be transposed to the function of the Court, especially its advisory one, as the Court is one of the principal organs of the un entrusted with particular responsibilities in strengthening the rule of law.

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General Assembly that has made use of it, the Security Council having only once requested an opinion.180 Select Bibliography C.F. Amerasinghe, Jurisdiction of International Tribunals, The Hague: Kluwer Law International, 2003, 881 p. G. Gaja, J. Grote Stoutenberg (eds.), Enhancing the Rule of Law Through the International Court of Justice, Leiden/Boston: Brill, 2014, 172 p.181 Increasing the Effectiveness of the International Court of Justice, Proceedings of the ICJ/ UNITAR Colloquium to Celebrate the 50th Anniversary of the Court, C. Peck, R. Lee (eds.), The Hague/Boston/London: Martinus Nijhoff Publishers, 1997, 542 p. R. Kolb, The International Court of Justice, Hart Publishing Limited, 2013, 1307 p. S. Muller et al (eds.), The International Court of Justice: Its Future Role After Fifty Years, The Hague: Martinus Nijhoff Publishers, 1997, 433 p. S. Oda, “The International Court of Justice Viewed From the Bench (1976–1983)”, Collected Courses of The Hague Academy of International Law, vol. 244 (1993), p. 9. A. El Ouali, Effets juridiques de la sentence internationale, Paris, Librairie générale de droit et de jurisprudence, 1984. S. Rosenne, The Law and Practice of the International Court, 1920–2005, Leiden/Boston: Martinus Nijhoff Publishers, 4th ed, 2006, 1891 p. H. Thirlway, The Law and Procedure of the International Court of Justice, Oxford: Oxford University Press, 2013, vol. 2. A. Zimmermann, C. Tomuschat, K. Oellers-Frahm, C. Tams (eds.), The Statute of the International Court of Justice. A Commentary, Oxford: Oxford University Press, 2nd ed., 2012, 1577 p.

180 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 1970, p. 362. 181 Includes papers presented at a conference entitled “The International Court of Justice in the Service of Peace and Justice”, which took place on 23 September 2013 at the Peace palace at The Hague. Video of the conference is available online at United Nations Audiovisual Library of International Law: http://legal.un.org/avl/ls/ICJ_Conference_CT.html.

chapter 3

The International Court of Justice and the Peaceful Settlement of International Disputes As mentioned in Chapter 1, the obligation to settle international disputes peacefully only recently became a general rule of international law. The individual use of non-peaceful means to settle disputes, once customary in international relations, is now forbidden, in accordance with the system of collective security established by the United Nations Charter in 1945. Article 2, paragraph 4, of the un Charter provides that “[a]ll 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”. Accordingly, the use of force is lawful only, on a temporary basis, in the case of self-defence (Art. 51 of the Charter), or when the Security Council, acting under Chapter 7 of the un Charter, considers such action to be necessary in order to maintain or restore international peace. As a corollary of the prohibition of the unilateral use of force, all Members of the un and, more generally, all States under international law must “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (Art. 2, para. 3, of the un Charter). Article 33 of the Charter obliges the States parties to a dispute, the continuance of which is likely to endanger international peace and security, to use one of the peaceful means of settlement it enumerates, i.e., “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”. This principle “has also the status of customary international law”.1 Whereas “the choice of those means admittedly rests with the parties[,]…[t] hey are nonetheless under an obligation to seek such a settlement, and to do so in good faith”.2 Two main consequences ensue from this principle:

1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, p. 145, para. 290. 2 Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment, i.c.j. Reports 2000, p. 33, para. 53.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004328860_005

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– first, under general international law, the parties to a dispute are not obliged to find an agreement settling their dispute, or even to agree on a specific method or procedure for settlement; they are only required to seek a solution (and, at the very least, to seek to agree on a peaceful means of reaching a settlement). The consent of all the parties concerned remains a fundamental condition of resort to any of the specific means of dispute settlement: “[i]t is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement”;3 – second, direct negotiations, in their widest sense, remain the first and last resort for the settlement of international disputes, in the absence of any special obligations undertaken by States, either through a bilateral or multilateral treaty containing provisions on the settlement of disputes, or through a unilateral undertaking to the same effect. In practice, negotiations remain the most commonly used means of settling disputes or differences between States. Indeed, “direct negotiations are a flexible and effective means of peaceful settlement”;4 States keep full control over the process, as well as over the terms of any settlement. It is also true that States often resort to a combination of the various means of settlement available to them. In light of this, questions may arise as to the relationship, or hierarchy—if one exists—between the different methods or procedures accepted by the parties to a dispute, in particular with regard to the judicial settlement of disputes. The San Francisco Charter (Art. 33) does not give exclusive priority to any method. What is essential is that the overall purpose—i.e., pacific settlement—is achieved. In view of this overall purpose, the relationships between the various means of settling international disputes, or of adjusting situations likely to endanger international peace and security, have been characterized as complementary. Such is the case for the relationship between direct negotiations and judicial settlement (Sec. 1). The gradual institutionalization of the (various) peaceful means of settling an international dispute, in particular at the level of the United Nations, has not led to any of those means (or to any of the organs entrusted with dispute settlement functions under the un Charter) taking priority, with the 3 Status of Eastern Carelia, Advisory Opinion, 1923, p.c.i.j., Series B, No. 5, p. 27. 4 Para. i (10) of the Manila Declaration on the Peaceful Settlement of International Disputes, 15 November 1982, A/RES/37/10.

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exception—to a certain extent—of the un Security Council, which has the primary responsibility, under Chapter 7 of the un Charter, for the maintenance of international peace and security (Sec. 2). It is against this legal and institutional background that the effective contribution of the Court to the accomplishment of the aims of the United Nations will be briefly assessed (Sec. 3). 1

Negotiations and the Judicial Settlement of Disputes

Negotiations in the “pre-jurisdictional” Phase Given the pre-eminence of consent in international law, and particularly in the settlement of international disputes, it is often asked whether recourse to judicial settlement should take place only after the exhaustion of some form of negotiations between the parties. Indeed, prioritizing recourse to diplomatic negotiations could be considered as being in line with typical arbitral practice, in so far as the conclusion of a compromis, by which a dispute may be referred to an arbitral tribunal, always requires prior negotiations. The oft-cited dictum of the Permanent Court of International Justice (pcij), according to which “the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative [‘un succédané’] to the direct and friendly settlement of such disputes between the Parties”,5 would also seem to point in this direction. While the Court’s Statute remains silent on this point,6 several other rulings of the pcij emphasize the importance of prior attempts to settle a dispute by diplomatic means before referring it to the Court. It should be noted, however, 5 Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, p.c.i.j., Series A, No. 22, p. 13. See also Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, i.c.j. Reports 1986, p. 577, para. 46; Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, i.c.j. Reports 1991, p. 20, para. 35. 6 The proposal made by the Advisory Committee of Jurists in 1920, that it must have proved impossible to settle a dispute by diplomatic means before that dispute could be submitted to the Court, did not make it into the final text of the Statute adopted by the Assembly of the League of Nations. See Article 33 of the draft Statute: “When a dispute has arisen between States, and it has been found impossible to settle it by diplomatic means, and no agreement has been made to choose another jurisdiction, the party complaining may bring the case before the Court. The Court shall, first of all, decide whether the preceding conditions have been complied with…”, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee, 16 June-24 July 1920 (with Annexes), The Hague, 1920, p. 726. The Committee of Jurists referred in particular to similar provisions in the Hague Conventions of 1899 and 1907 regarding international arbitration:

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that in such cases, the Court’s jurisdiction was based on clauses referring to disputes which “cannot be settled by negotiations”.7 For its part, the current Court made it clear that the exhaustion of diplomatic negotiations is not a general precondition, under its Statute, for a dispute to be referred to it. As recalled in the Cameroon v. Nigeria case: ‘Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes’ (Aegean Sea Continental Shelf, Judgment, i.c.j. Reports 1978, p. 12, para. 29). Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court. No such precondition was embodied in the Statute of the Permanent Court of International Justice, contrary to a proposal by the Advisory Committee of Jurists in 1920 (Advisory Committee of Jurists, Procès-verbaux of the proceedings of the Committee (16 June-24 July 1920) with Annexes, pp. 679, 725–726). Nor is it to be found in Article 36 of the Statute of this Court.8 The Court further recalled that [a] precondition of this type [the exhaustion of diplomatic negotiations] may be embodied and is often included in compromissory clauses of “This provision which is a dominating factor in the organization of Jurisdiction by Arbitration must also be the main factor in the organization of the Permanent Court of International Justice. It would not be wise that a State should be subject to an unforeseen summons before the Permanent Court of International Justice, even in virtue of a previous Convention of Arbitration. Such proceeding would fail the respect which States owe to each other. Appeal to the Court should not be made until all means of friendly settlement have been tried. But the Committee did not intend to enable a party to avoid the jurisdiction of the Court by alleging that there was still some hope of settlement by diplomatic means”, (ibid., Article 13 of the Covenant also referred to the settlement of disputes “which cannot satisfactorily be settled by diplomacy”). 7 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, p.c.i.j., Series A, No. 2, p. 15: “The Court realises to the full the importance of the rule laying down that only disputes which cannot be settled by negotiations should be brought before it. It recognises, in fact, that before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by means of diplomatic negotiations”. The Application was based on a compromissory clause (Art. 26 of the Palestine Mandate). 8 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, i.c.j. Reports 1998, pp. 302–303, para. 56.

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treaties. It may also be included in a special agreement whose signatories then reserve the right to seise the Court only after a certain lapse of time (cf. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, i.c.j. Reports 1994, p. 9). Finally, States remain free to insert into their optional declaration accepting the compulsory jurisdiction of the Court a reservation excluding from the latter those disputes for which the parties involved have agreed or subsequently agree to resort to an alternative method of peaceful settlement.9 In the absence of a clear intention expressed by the parties to the contrary, the principle thus remains that the exhaustion of diplomatic negotiations is not, as such, a precondition under the Statute for referring a dispute to the Court. In cases where such a precondition has to be met, because for example a compromissory clause provides that only disputes “that cannot be [or are not] settled through negotiations” may be referred to the Court, the Court enjoys a certain margin of appreciation when determining whether this condition has been fulfilled. In a recent case in which the Court was confronted with such a situation, it stated that: the Court must begin by ascertaining whether there was, ‘at the very least[,] a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute’ (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, para. 157). According to the Court’s jurisprudence, ‘the precondition of negotiation is met only when there has been a failure of negotiations, or when negotiations have become futile or deadlocked’ (ibid., para. 159). The requirement that the dispute ‘cannot be settled through negotiation’ could not be understood as referring to a theoretical impossibility of reaching a settlement. It rather implies that, as the Court noted with regard to a similarly worded provision, ‘no reasonable probability exists that further negotiations would lead to a settlement’ (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, i.c.j. Reports 1962, p. 345).10 If not the effectiveness of the overarching goal (i.e., the peaceful settlement of disputes), what appears, generally speaking, to dominate the Court’s assessment 9 10

Ibid. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012 (ii), pp. 445–446, para. 57.

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is its recognition of the need to adopt a realistic approach to the question of whether a State has pursued its attempts to negotiate as far as possible.11 In the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), the Court found for the first time that the precondition of negotiations, as stipulated in a compromissory clause, had not been met. In its Judgment, the Court addressed a series of questions regarding the nature of this condition, namely, what constitutes negotiations, what is their appropriate form and substance, and to what extent should they be pursued before it can be said that the precondition has been met.12 * In practice, the pcij always kept in mind the fact that the Court can only exercise its contentious jurisdiction over existing legal disputes, and that prior diplomatic negotiations are therefore only “required” in so far as they may constitute proof of the existence of the dispute at the time of its submission to the Court.13 Even if the instrument upon which the Court’s jurisdiction is based does not by itself require that there must have been a failed attempt to settle the dispute through negotiation, some form of “negotiations” lato sensu,14 or of diplomatic contacts, appears nonetheless to be a basic, practical prerequisite 11

See the joint dissenting opinion of President Owada, Judges Simma, Abraham and Donoghue and Judge ad hoc Gaja, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, i.c.j. Reports 2011 (i), p. 159, para. 56: “There is no general criterion—nor can there be one—which makes it possible to determine at what point a State is regarded as having complied with the obligation to attempt to negotiate with respect to its claims against another State, and to pursue those attempts as far as possible, with a view to reaching an agreement. Everything depends on the circumstances[,]…the nature of the questions which form the subject-matter of the dispute, and the conduct of the State that is being implicated”. 12 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, i.c.j. Reports 2011 (i), pp. 132–134, paras. 157–162. 13 See, in this connection, Electricity Company of Sofia and Bulgaria, Judgment, 1939, p.c.i.j., Series A/B, No. 77, p. 83. 14 See Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, i.c.j. Reports 2011 (i), para. 157: “Negotiations entail more than the plain opposition of legal views or interests between two parties, or the existence of a series of accusations and rebuttals, or even the exchange of claims and directly opposed counter-claims. As such, the concept of ‘negotiations’ differs from the concept of ‘dispute’, and requires—at the very least—a

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to the seisin of the Court, in so far as negotiations are the primary means by which the existence of a “dispute” between the parties can materialize. This “condition”, however, is not related to the consent given by the parties to the Court’s jurisdiction in a particular case (unlike the condition inserted in the form of a compromissory clause or an optional declaration under Art. 36, para. 2, that only disputes which are not or cannot be settled by negotiations may be entertained by the Court, which may be). The existence of a “dispute” is required by the Court’s Statute, and is inherent to its judicial character.15 Indeed, the Court’s mission is confined to the settlement, in accordance with international law, of such “disputes” as are submitted to it (Art. 38 of the Statute).16 As was held in the Nuclear Tests cases, “[t]he Court, as a court of law, is called upon to resolve existing disputes between States. Thus the existence of a dispute is the primary condition for the Court to exercise its judicial function”.17 The Court’s established case law on the question of the existence of a dispute begins with the oft-cited statement of the pcij in the Mavrommatis Palestine Concessions case in 1924: “A dispute is a disagreement on a point of

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genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute”. On the inherent limitations of the exercise of the Court’s judicial function, see supra Chapter 2.2. Whether such a dispute should pre-exist the seisin of the Court has been discussed in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, i.c.j. Reports 2008, pp. 437–438, paras. 79–80; in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment, i.c.j. Reports 2011, p. 85, para. 30; and in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012 (ii), pp. 442–445, paras. 46–55. This matter has also been raised in three cases which were pending before the Court at the date of finalization of the present text (15 October 2015): see Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), memorial of Marshall Islands of 12 January 2015, [http://www.icj-cij.org/docket/files/159/18902.pdf], paras. 42 et seq.; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom of Great Britain and Northern Ireland), preliminary objections of the United Kingdom, 15 June 2015, paras. 26 et seq.; and Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), counter-memorial of India, 16 September 2015, [http://www.icj-cij.org/docket/files/158/18900.pdf], para. 3 et seq. Art. 36, para. 2, for its part, refers to the acceptance of the compulsory jurisdiction “in all legal disputes”. Nuclear Tests (Australia v. France), Judgment, i.c.j. Reports 1974, pp. 270–271, para. 55; Nuclear Tests (New Zealand v. France), Judgment, i.c.j. Reports 1974, p. 476, para. 58. See also, Frontier Dispute (Burkina Faso/Niger), infra, note 29.

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law or fact, a conflict of legal views or of interests between two persons.”18 To date, this definition has been clarified on a number of occasions. For example, the Court has also defined a dispute as “opposite views concerning the question of the performance or non-performance of certain treaty obligations”,19 or as “an actual controversy involving a conflict of legal interests between the parties”.20 In the East Timor case, the expression “between two persons” used in Mavrommatis was replaced by the more accurate formulation of “between parties”.21 Regardless of the exact phraseology, the underlying principles established by the Permanent Court in Mavrommatis remain today’s touchstones in identifying justiciable disputes. According to the icj in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, the question of whether there is a dispute in a given case is a matter for “objective determination” by the Court.22 Further, in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, the Court established that any analysis of the existence of a dispute will be based on an examination of the facts; “the matter is one of substance, not of form”.23 It is for the Court to determine whether there is a dispute.24 Such authority derives from the Court’s inherent power to determine its own jurisdiction and/or the admissibility of an application. The Court has to determine the existence of a dispute following an examination of the positions of the parties as expressed in the diplomatic history of the matter at hand. As stated in the South West Africa cases: “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. It must be shown that the claim of one party is positively opposed by the other.”25 18 19 20 21 22 23

24 25

Mavrommatis Palestine Concessions, Judgment No. 2, 1924, p.c.i.j., Series A, No. 2, p. 11. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, i.c.j. Reports 1950, p. 74. Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, i.c.j. Reports 1963, pp. 33–34. East Timor (Portugal v. Australia), Judgment, i.c.j. Reports 1995, p. 99, para. 22. Loc. cit., supra, note 19. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, i.c.j. Reports 2011 (i), pp. 84–85, para. 30. See also the verbatim records of the oral proceedings in the case concerning Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), cr 2015/22 (28 September 2015), pp. 39–46 (reisman); and cr 2015/23 (29 September 2015), pp. 32–40 (lowe). Frontier Dispute (Burkina Faso/Niger), Judgment, i.c.j. Reports 2013, p. 29, para. 49. South West Africa (Ethiopia v. South Africa); (Liberia v. South Africa), Preliminary Objections, Judgment, i.c.j. Reports 1962, p. 328; emphasis added.

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Inevitably, some form of protest or discussion must predate the submission of the “dispute” to the Court. It is to be noted, however, that a State is not bound to inform the State against which it has a claim of its intention to bring proceedings before the Court.26 To sum up on these questions, it appears that the unsuccessful exhaustion of negotiations is not a general precondition for submitting a dispute to the Court, although it may be frequently required, legally, by virtue of a special undertaking by the States concerned in the instrument on which the Court’s jurisdiction is based. At the same time, some form of negotiations will often prove to be necessary as evidence of the existence of a dispute and as a matter of practical and political expediency. Negotiations Conducted in Parallel with Proceedings before the Court Given the pre-eminence of the goal of the peaceful settlement of disputes, there is no doubt that negotiations (or other pacific methods) can be pursued in parallel with the introduction and evolution of judicial proceedings before the Court. As the Court has recalled on a number of occasions, that there are negotiations in progress does not constitute an impediment to the exercise of its jurisdiction: 26

See the Court’s rejection of the objection raised by Nigeria in this respect against the unilateral application brought by Cameroon, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, i.c.j. Reports 1998, p. 297, para. 39. “The Court furthermore notes that although the principle of good faith is ‘one of the basic principles governing the creation and performance of legal obligations…it is not in itself a source of obligation where none would otherwise exist’ (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1988, p. 105, para. 94). There is no specific obligation in international law for States to inform other States parties to the Statute that they intend to subscribe or have subscribed to the Optional Clause. Consequently, Cameroon was not bound to inform Nigeria that it intended to subscribe or had subscribed to the Optional Clause. Moreover: ‘A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance.’ (Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment, i.c.j. Reports 1957, p. 146.)” This is further confirmed by the State practice of inserting, into declarations made under Article 36, paragraph 2, of the Statute, reservations aimed at preventing such a scenario (see, for example, the declaration made by the United Kingdom, whereby it excluded the Court’s jurisdiction in cases “where the acceptance of the Court’s compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court”).

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Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes. The jurisprudence of the Court provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued pari passu. Several cases, [including, for example, that concerning] the Trial of Pakistani Prisoners of War (i.c.j. Reports 1973, p. 347), show that judicial proceedings may be discontinued when such negotiations result in the settlement of the dispute. Consequently, the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function.27 This is also duly acknowledged in the Rules of Court (Art. 88, para. 1), which provide that, “[i]f at any time before the final judgment on the merits has been delivered, the parties, either jointly or separately, notify the Court in writing that they have agreed to discontinue the proceedings, the Court shall make an order recording the discontinuance and directing that the case be removed from the list”. If the parties have agreed to discontinue the proceedings because they have reached a settlement in respect of their dispute, they may ask the Court to “record this fact in the order for the removal of the case from the list, or indicate in…the order the terms of the settlement” (Art. 88, para. 2). Moreover, as the Permanent Court once said: “it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement”.28 It has at times been recognized that ongoing judicial proceedings before the Court may induce the parties to find an amicable settlement to their dispute. Obviously, the Court may only exercise powers attributed to it by the Statute and, as a court of law, must remain within the bounds of its judicial function. Thus, the Court is not empowered to “settle” a dispute by ordering the parties to negotiate such settlement as they deem fit, nor may it agree simply to record, in its “decision”, an agreement reached by the parties before they seised the Court. The latter situation was considered by the Court in the recent case between Burkina Faso and Niger, in which one of the Parties asked the Court to formally include in its decision (i.e., the operative part of the Judgment) an agreement 27

28

Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, i.c.j. Reports 1978, p. 12, para. 29. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1984, p. 440, para. 106. Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, p.c.i.j., Series A, No. 22, p. 13.

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reached by the Parties regarding the course of their boundary in particular sectors of their common frontier. The Court, inter alia, distinguished this hypothesis from that where an agreement is concluded between parties during the course of the proceedings.29 The Court may call on the parties to a dispute to negotiate, either on an interim basis, as a provisional measure indicated by the Court in order to preserve their respective rights pending the definitive determination of the dispute,30 or in specific cases, where the subject-matter of the dispute and the applicable rules so allow. This second hypothesis also touches upon the question of negotiations in the “post-jurisdictional” phase, which will now be addressed. Negotiations in the “post-jurisdictional” Phase The icj, and the pcij before it, has often declared that it cannot contemplate the event of non-compliance with its decisions.31 Neither can the Court go beyond its function as a court of law and give directions to the parties regarding the various courses open to them for implementing a judgment. In the Haya de la Torre case, the Court was asked to choose, from the various courses available, the manner in which the asylum should be terminated (which it had decided in a previous judgment); it indicated that the available courses were “conditioned by facts, and by possibilities which, to a very large extent, the Parties [were] alone in a position to appreciate. A choice amongst them could not be based on legal considerations, but only on considerations of practicability or of political expediency; it [was] not part of the Court’s judicial function to make such a choice”.32 It may happen, however, that the Court cannot but find that the parties are under a duty to negotiate a particular outcome, in which case it may indicate certain guidelines as to the conduct and purpose of the negotiations. In the Fisheries Jurisdiction cases, the Court found that the extension of fisheries j­urisdiction around Iceland was not opposable to the Applicants, but that 29

Frontier Dispute (Burkina Faso/Niger), Judgment, i.c.j. Reports 2013, p. 72, paras. 54–58; see also supra notes 88–89 (Chapter 2). For the abovementioned reason, the Court considered that the two precedents cited by Burkina Faso were not relevant, since they both contemplated situations in which an agreement was reached between the parties during the proceedings, see Free Zones of Upper Savoy and the District of Gex (Second Phase), p.c.i.j., Series A, No. 24, p. 14 and Société Commerciale de Belgique, Judgment, 1939, p.c.i.j., Series A/B, No. 78, p. 178. 30 And also on a broader basis, for example, in order to avoid the aggravation or extension of the dispute, or the exacerbation of the dispute into an open conflict between the parties, pending the judgment of the Court. See infra, Sec. 3. 31 See supra note 112 (Chapter 2). 32 Haya de la Torre (Colombia/Peru), Judgment, i.c.j. Reports 1951, p. 79.

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­Iceland, in view of its situation as a State specially dependent on coastal fisheries, was nonetheless entitled to preferential rights in respect of the fish stocks of the waters adjacent to its coasts. The Court held that the Applicants and the Respondent had an obligation to take full account of each other’s rights and of any fishery conservation measures the necessity of which was shown to exist in those waters. Therefore, the Court found that “the most appropriate method for the solution of the dispute [was] clearly that of negotiation”:33 Its objective should be the delimitation of the rights and interests of the Parties, the preferential rights of the coastal State on the one hand and the rights of the Applicant on the other, to balance and regulate equitably questions such as those of catch-limitation, share allocations and ‘related restrictions concerning areas closed to fishing, number and type of vessels allowed and forms of control of the agreed provisions’…This necessitates detailed scientific knowledge of the fishing grounds. It is obvious that the relevant information and expertise would be mainly in the possession of the Parties. The Court would, for this reason, meet with difficulties if it were itself to attempt to lay down a precise scheme for an equitable adjustment of the rights involved. It is implicit in the concept of preferential rights that negotiations are required in order to define or delimit the extent of those rights, as was already recognized in the 1958 Geneva Resolution on Special Situations relating to Coastal Fisheries, which constituted the starting point of the law on the subject.34 To direct the Parties to negotiate was considered to be “a proper exercise of the judicial function in [that] case”, consonant with the principle of the peaceful settlement of disputes: “The obligation to negotiate thus flows from the very nature of the respective rights of the Parties; to direct them to negotiate is therefore a proper exercise of the judicial function in this case. This also corresponds to the Principles and provisions of the Charter of the United Nations concerning peaceful settlement of disputes. As the Court stated in the North Sea Continental Shelf cases:

33

34

Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, i.c.j. Reports 1974, p. 31, para. 73. See also Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, i.c.j. Reports 1974, p. 201, para. 65. Id., pp. 31–32, paras. 73–74 and 201, paras. 65–66.

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‘…this obligation merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes’ (I.C.J. Reports 1969, p. 47, para. 86). .................................................................................................................................

In the fresh negotiations which are to take place on the basis of the present Judgment, the Parties will have the benefit of the above appraisal of their respective rights, and of certain guidelines defining their scope. The task before them will be to conduct their negotiations on the basis that each must in good faith pay reasonable regard to the legal rights of the other in the waters around Iceland outside the 12-mile limit, thus bringing about an equitable apportionment of the fishing resources based on the facts of the particular situation, and having regard to the interests of other States which have established fishing rights in the area. It is not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law. As the Court stated in the North Sea Continental Shelf cases: ‘…it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles’ (I.C.J. Reports 1969, p. 47, para. 85)”35 The case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) provides another example where the Court directed the Parties towards a negotiated settlement of certain issues in dispute. In this case the Court was requested, under Article 2, paragraph 2, of the Special Agreement, to determine the legal consequences, including the rights and obligations of the Parties, arising from its Judgment on the questions which were referred to it under Article 2, paragraph 1, of the same instrument. Those questions concerned the conduct of both Parties with regard to the construction and operation of a barrage system over a section of the Danube river, between Czechoslovakia (then Slovakia as the successor State) and Hungary. In its Judgment, the Court first found: (1) that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the dam project for which it was responsible under the 1977 Treaty between Hungary and Czechoslovakia and related instruments; (2) that Czechoslovakia was entitled, in November 1991, to start making preparations for an alternative provisional solution (known as “Variant C”), but not to put that solution into operation in October 1992 as a unilateral measure; (3) that Hungary’s notification of termination of the 1977 Treaty and related 35

Id., pp. 32, para. 75, and 33, para. 78; see also pp. 201, para. 67 and 202, para. 69.

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instruments on 19 May 1992 had not legally terminated them (and that they were consequently still in force and governed the relationship between the Parties); and (4) that Slovakia, as the successor to Czechoslovakia, had become a party to the 1977 Treaty. On the basis of those findings, the Court, in the second part of its Judgment, decided that Hungary and Slovakia had to negotiate in good faith, in the light of the prevailing situation, and take all necessary measures to ensure the achievement of the objectives of the 1977 Treaty; that, unless the Parties agreed ­otherwise, a joint operational régime for the dam on Slovak territory had to be established in accordance with the 1977 Treaty; that each Party had to compensate the other Party for the damage caused by its conduct, but that, since there had been “intersecting wrongs”, the issue of compensation could be satisfactorily resolved if each of the Parties renounced its claims; and that the accounts for the construction and operation of the works had to be settled in accordance with the relevant provisions of the 1977 Treaty and its related instruments. The Court thus “reconstructed” the framework for the co-operation of the Parties, taking account of both the legal situation, i.e., the persistence of the Treaty despite breaches by both Parties, and the factual situation, i.e., the existence of Variant C. This required the Parties to adapt the way in which they were to co-operate on the use of water and on the future management of the Danube, in the light of their past conduct. As exemplified in these cases, the proper exercise of the Court’s judicial function may entail taking account of realities, or facts, which might appear to escape the rule of law but which are nonetheless part of a legal situation which the Court has to settle effectively.36 * Lastly, it should be mentioned that “[i]t is always open to the parties to a dispute to have recourse to a conjunction of judicial determination and 36

While not in complete agreement with the reasoning of the Court in the GabčíkovoNagymaros Judgment, Judge Bedjaoui highlighted, in his separate opinion, the difficulty, but also the necessity, of taking into account the intersecting violations committed by the parties, which created two effectivités, (i.c.j. Reports 1997, pp. 135 et seq., paras. 54 et seq.: “The jurist is not fond of effectivités. They violate his taste for the legal ordering of things. On the other hand, he is aware that the realities of life are complex and that a substantial portion of these realities inevitably escapes the rule of law. So he is sometimes realistic enough to take account of some of these situations—when they persist—and to regard these effectivités as an ‘action of the fact’ against the legal title. This attitude is not only dictated by realism but is nourished by the desire to reincorporate these effectivités into the legal processes”).

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settlement by agreement”.37 There have been cases, for instance, in which the parties have entrusted the Court with the task of indicating what principles and rules may be applied for the delimitation of a disputed maritime area, while reserving for themselves the task of drawing the delimitation line itself. In such cases, the Court’s judgment will settle only the dispute regarding the applicable law, and will leave the final delimitation to be decided by a subsequent agreement between the parties.38 Another example of combining judicial determination with settlement by agreement can be found in cases involving issues of State responsibility. In such cases, it is common practice for the parties (usually the applicant, but also the respondent if it has raised counter-claims) to ask, on the one hand, for the Court to declare that the other party has breached its obligations, that its international responsibility is incurred on account of these breaches, and that it must therefore make reparation for all damages caused by the wrongful acts committed and, on the other hand, to request the Court to leave to the parties the determination of the nature, form and exact amount of the reparation owed, unless they fail to agree thereon, and to reserve the subsequent procedure for that purpose.39 Thus, the Court has seldom had to rule on the question of the compensation owed by one party to another. Only two cases, so far, have given rise to such a determination by the Court.40 37

Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, i.c.j. Reports 1985, p. 218, para. 46. 38 See, for example, North Sea Continental Shelf (Federal Republic of Germany/Denmark), Judgment, i.c.j. Reports 1969, p. 3; North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judgment, i.c.j. Reports 1969, p. 3; Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), Judgment, i.c.j. Reports 1982, p. 18. The judicial settlement of disputes in matters of maritime delimitation will be discussed further in Chapter 4, infra. 39 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, i.c.j. Reports 2010 (ii), p. 639; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 168. 40 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, i.c.j. Reports 1949, p. 4; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, i.c.j. Reports 2010 (ii), p. 639. By an Order of 1 July 2015, the Court decided to resume the proceedings in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), with regard to the question of reparations, and fixed time-limits for the filing by each Party of a Memorial on the reparations which it considers to be owed to it by the other, i.c.j. Reports 2015 ( forthcoming).

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The Court’s Function and the Institutional Architecture of the United Nations for the Peaceful Settlement of Disputes

It is clear that judicial settlement by the icj enjoys a special place in the overall machinery for dispute resolution established by the un Charter. It is the preferred, though not exclusive, forum for the settling of disputes between States concerning any point of international law. This is expressly recognized in the un Charter, which inter alia provides that, in the exercise of its powers with respect to the peaceful settlement of disputes likely to endanger international peace and security, the Security Council “should…take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice” (Art. 36, para. 3). Nonetheless, it is worth emphasizing that, in the un Charter, the use of judicial (or arbitral) settlement to maintain peace and security does not enjoy the privileged position it did within the Covenant of the League of Nations. Article 12 of the Covenant provided that the Members of the League had to submit any dispute likely to lead to a rupture of peace either to arbitration or judicial settlement or to enquiry by the Council. Nowadays, it is the Security Council which has primary responsibility for maintaining international peace and security (Art. 24, para. 1, of the Charter). A whole chapter (Chap. 6) of the un Charter is devoted to the “Pacific Settlement of Disputes” (Arts. 33–38), and recognizes the various courses of action open to the principal un organs with regard to any disputes the continuance of which is likely to endanger international peace and security. Another chapter of the Charter touches upon the “Regional Arrangements” made by States for dealing with the peaceful settlement of (“regional”) disputes, as well as with such matters relating to the maintenance of international peace and security as are appropriate for regional action (Chap. 8, Arts. 52–54). These various provisions, amongst others included in different parts of the un Charter,41 contemplate very different methods of settling international disputes, involving, in addition to negotiations and to a varying extent, the intervention of political organs as third-parties in such disputes. 41

In addition to Chapter 14, which focuses on the icj, see, for example, Art. 99: “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. This provision forms the legal basis of the political activities undertaken by the Secretary-General in case of disputes among Member States, for example, offering his good offices, in addition to the functions entrusted to him by the principal un organs (except the Court), see Art. 98 of the un Charter.

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Article 33 of the un Charter enumerates the traditional means of settlement, namely: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of the parties’ choice. Articles 34, 36, 37 and 38 of the un Charter deal with the functions entrusted to the Security Council and to the General Assembly (and, incidentally, in Art. 36, para. 3, to the icj) for the peaceful settlement of disputes. None of these provisions provides for an ex officio, binding resolution of a dispute (likely to endanger international peace and security) by a third-party, i.e., by one of the political organs of the United Nations. The Security Council may investigate any dispute or situation (in order first to determine whether the continuance of the dispute or situation is likely to endanger international peace and security, see Art. 34). It may also recommend appropriate procedures or methods of adjustment (Art. 36, para. 1), including judicial settlement of legal disputes, as already indicated, or recommend such terms of settlement as it considers appropriate (Art. 37, para. 2).42 The General Assembly can also act in response to such disputes, subject to the provisions of Articles 11 and 12 of the Charter (Art. 35, para. 3). It may “discuss any questions relating to the maintenance of international peace brought before it by any Member of the United Nations, or by the Security Council, [or by a State which is not a Member of the United Nations, in accordance with Art. 35, para. 2,] and…make recommendations with regard to any such questions to the State or States concerned or to the Security Council or to both” (Art. 11, para. 2). The General Assembly may also, ex officio, call the attention of the Security Council to situations which are likely to endanger international peace and security (Art. 11, para. 3). The powers of the General Assembly are, in principle, secondary only to those of the Security Council, since Article 12, paragraph 1, of the un Charter provides that: While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the…Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.43 42

43

The Security Council may, “if all the parties to a dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute” (Art. 38), or even be entrusted with a “quasi-judicial role”, should the parties consent to vest it with the power to decide with binding force the dispute. Furthermore, any such question discussed by the General Assembly and on which action is necessary “shall be referred to the Security Council by the General Assembly either before or after discussion” (Art. 11, para. 2, in fine).

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However, the interpretation given to this provision has evolved over time, as the Court pointed out in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; thus, from the start of the 1960s onwards, the General Assembly considered itself entitled to adopt recommendations in various matters (Congo, 1961; Portuguese colonies, 1963), despite the fact that those cases still appeared on the Council’s agenda, when the Council had not adopted any recent resolutions in their regard. The Court noted that there was a growing tendency for the General Assembly and the Security Council to deal in parallel with matters concerning the maintenance of international peace and security. The Court also noted that it was often the case that, while the Security Council tended to focus on the aspects relating more strictly to international peace and security, the General Assembly took a broader view, considering the humanitarian, social and economic aspects as well. The Court was of the opinion that the accepted practice of the General Assembly, as it had evolved, was consistent with Article 12, paragraph 1, of the Charter.44 Be that as it may, this division of powers between the Security Council and the General Assembly has no equivalent as far as the icj is concerned (see infra for the relevant case law of the Court on the matter). In addition to the Security Council and the General Assembly, and as already alluded to, the un Charter recognizes the existence of regional arrangements or agencies for dealing with matters relating to the maintenance of international peace and security (on a regional scale), “provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations” (Art. 52, para. 1, of the Charter). The Charter also encourages the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies (Art. 52, para. 3). Once again, it makes clear that the powers of regional or specialized organizations should in no way impair those of the un organs, and of the Security Council in particular (see Art. 52, para. 4, Art. 53, para. 1 (with regard to enforcement actions), and Art. 54). In conclusion, and considering all the machinery established by the un Charter, the judicial settlement of disputes no longer appears to be a privileged forum for the resolution of all international disputes; rather it is simply, and to a limited extent (see Art. 36, para. 3, and Art. 9545), the preferred means for settling legal disputes. At the same time, neither the principal political organs 44 45

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 (i), pp. 149–150, paras. 27–28. “Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.”

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of the United Nations, nor the regional arrangements, have any precedence or priority over the judicial function of the Court.

* In the same way that direct negotiations do not preclude resort to the Court, the exercise by the General Assembly or the Security Council of functions assigned to them by the Charter in respect of a dispute does not prevent States from submitting the question under consideration to the Court for adjudication. Neither does the fact that the dispute is under consideration by a regional organization, nor the fact that it has been referred to any other institutionalized means of peaceful settlement, in itself bar the dispute from being voluntarily submitted to the Court by the parties or from being resolved by the Court. This principle has been expressed and applied by the Court in a number of cases referred to it when a political settlement was already underway. On each occasion, the Court has asserted that this was no obstacle to a judicial settlement also being pursued. When seised of the international crisis which arose as a consequence of United States diplomatic and consular staff being taken hostage in Tehran, the Court stated that the political character of an overall problem between two States could not preclude the examination by it of legal claims made in such a context: legal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and longstanding political dispute between the States concerned. Yet never has the view been put forward before 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 questions at issue between them. Nor can any basis for such a view of the Court’s functions or jurisdiction be found in the Charter or the Statute of the Court; 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.46 The Court also said that the establishment by the un Secretary-General of a Commission of Inquiry and the fact that the Security Council was actively 46

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, p. 20, para. 37.

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seised of the matter did not prevent it from exercising its jurisdiction in parallel.47 The Court insisted that: [w]hereas Article 12 of the Charter expressly forbids the General Assembly to make any recommendation with regard to a dispute or situation while the Security Council is exercising its functions in respect of that dispute or situation, no such restriction is placed on the functioning of the Court by any provision of either the Charter or the Statute of the Court.48 But it is the case concerning Military and Paramilitary Activities in and against Nicaragua which probably marks the most significant turning point in the recent jurisprudence of the Court. Nicaragua’s Application concerned the use of force by the United States on its territory, and also the support provided by the latter to the Contra paramilitary forces engaged in the civil war. By a first Judgment delivered in 1984, the Court rejected the objections to its jurisdiction and the admissibility of the Application raised by the United States. Among other things, it asserted that the Contadora process, a political negotiation conducted under the aegis of the United Nations and the Organization of American States (oas), did not constitute an obstacle to the Security Council and the Court itself performing their respective functions in parallel: the Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of the Nicaraguan Application.49 The Court thus clarified the relationships between the various means of peaceful settlement, highlighting their complementary nature. It also pointed out 47 48 49

Ibid., p. 21, para. 40. Ibid., p. 22, para. 40. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 1984, p. 440, para. 108. See also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, i.c.j. Reports 1998, p. 307, para. 68 (“Whatever their nature, the existence of procedures for regional negotiation cannot prevent the Court from exercising the functions conferred upon it by the Charter and the Statute.”).

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that, with respect to the maintenance of international peace and security, Article 24 of the Charter conferred upon the Council principal but not exclusive responsibility: It is necessary to emphasize that Article 24 of the Charter of the United Nations provides that ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security…’ The Charter accordingly does not confer exclusive responsibility upon the Security Council for the purpose. While in Article 12 there is a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard to that dispute or situation unless the Security Council so requires, there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events.50 The Court thus rejected the argument of the United States that, because of the alleged ongoing armed conflict between the two States, and since the matter concerned a complaint by Nicaragua involving the use of force, such matter could not be brought to the icj but should be referred, exclusively, to the Security Council. The Court also emphasized that any judgment on the merits in the…case [would] be limited to upholding such submissions of the Parties as have been supported by sufficient proof of relevant facts, and are regarded by the Court as sound in law. A situation of armed conflict is not the only one in which evidence of fact may be difficult to come by, and the Court has in the past recognized and made allowance for this (Corfu Channel, i.c.j. Reports 1949, p. 18; United States Diplomatic and Consular Staff in Tehran, i.c.j. Reports 1980, p. 10, para. 13). Ultimately, however, it is the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as 50

Ibid., pp. 434–435, para. 95.

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unproved, but is not to be ruled out as inadmissible in limine on the basis of an anticipated lack of proof.51 Thus, while the Court and the Security Council may perform their functions at the same time with respect to the same events, these functions are and must remain “separate”; indeed, this is necessary in order for them to be complementary. 3

The Judicial Settlement of Disputes and the Maintenance of International Peace and Security

As the principal judicial organ of the United Nations, the Court forms part of an organization dedicated to international peace and security. In this respect, “[t]he icj is a component not only of the machinery for the peaceful settlement of disputes created by the Charter but also of the general system for the maintenance of international peace and security it established”.52 In reality, unlike the Council of the League of Nations,53 the Security Council has had very little recourse to the Court in the discharge of its functions, and has preferred instead to focus on political solutions to disputes. It did, however, invite the protagonists in the Corfu Channel case, the first contentious case brought before the icj, to submit their dispute to the Court. This case happened to concern military events: the United Kingdom considered that Albania had incurred its international responsibility after two British destroyers had struck mines in the Albanian territorial waters of the Corfu Channel, causing major loss of life and material damage. The British Government brought the case before the Security Council, which adopted a resolution recommending that the Parties should take the case to the Court, even though Albania was not a Member of the United Nations or a party to the Statute of the Court. The icj successfully fulfilled its task, but the Security Council has not made such an invitation since.54 51 52

53 54

Ibid., p. 437, para. 101. “The Limitations on the Contribution by the International Court of Justice to the Maintenance of Peace”, address by the President of the Court, H.E. Judge Mohammed Bedjaoui, to the General Assembly, 15 October 1996, i.c.j. Yearbook 1996–1997, p. 208. See Chapter 1 and infra, (b). The Security Council was seised of the dispute between Greece and Turkey regarding the Aegean Sea Continental Shelf on the same day on which the Application and Request for interim protection were filed with the Court. The Security Council adopted a resolution a few days later, in which it recalled the principles of the Charter concerning the

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From its inception, the icj was thus part of a very different framework to that in which the Permanent Court had developed and the Court’s role in the immediate post-war period was very different to the role of its predecessor. The War Settlement was essentially political and a bipolar world soon emerged. The political equilibrium of the Cold War left very little room for judicial settlement and the major international crises which raised immediate security problems largely escaped consideration by the Court for many years, owing to a lack of political will among States to refer the legal aspects of these problems to it. Nonetheless, even at that time, the Court played a significant role as a tool for what would be described by former Secretary-General Boutros BoutrosGhali as “preventive diplomacy”, i.e., the prevention of armed conflicts. The Court continues to play a vital role in this respect today, as will be briefly illustrated hereinafter. As mentioned in the previous section, an important change occurred on the eve of the 1980s, as the Court was called on more and more frequently to fulfil a complementary role to that of the un political organs primarily responsible for the maintenance and restoration of peace, and the Security Council in particular. Conversely, the increased use of the latter’s powers under Chapter 7 of the un Charter, from the beginning of the 1990 onwards, raised some concerns that the Security Council might, in some cases, exceed the parameters of its political function, and interfere with the Court’s judicial role. A few examples of the complementary roles of the Court and the Security Council, when both are seised of the same question, will follow; the possibility of the Court reviewing the legality of actions undertaken by the Security Council will also be briefly discussed. A Valuable Tool of Preventive Diplomacy: The Court’s Contribution to the Prevention of Conflicts As already mentioned, under the un Charter, judicial settlement is not the preferred means of settling each and every dispute. Rosenne summarizes well

(a)

peaceful settlement of disputes, called upon the parties “to settle their problems primarily by mean of direct negotiations in order that these might result in mutually acceptable solutions”, and invited “the Government of Greece and Turkey in this respect to continue to take into account the contribution that appropriate judicial means, in particular the International Court of Justice, are qualified to make to the settlement of any remaining legal differences that they may identify in connection with their…dispute” (resolution 395 (1976), para. 4); see i.c.j. Reports 1978, p. 10, para. 23.

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the differences in the position occupied by the icj, compared to that of its predecessor: Inasmuch as the League Covenant did not absolutely prohibit the use of force or resort to war, its procedures for the pacific settlement of disputes, including judicial settlement, appeared as an alternative to the use of force. With the treaty on the Renunciation of War as an Instrument of National Policy (the Briand-Kellog Pact) of 1928, despite many reservations to it, and even more so with the more absolute and unreserved prohibition on the threat or use of force save in conformity with the provisions of the Charter which all members of the United Nations have taken upon themselves, the judicial settlement of disputes is no longer an alternative to the use of force but an alternative to other means of pacific settlement of disputes.55 The Court’s contribution to the prevention of conflicts, while not spectacular, was nevertheless—and still is—effective and efficient, whether settling particular types of disputes or, more generally, developing international law and providing guidance for States in the conduct of peaceful and amicable relations. Until the 1970s, the judgments delivered essentially concerned questions of territorial delimitation and diplomatic protection. In this connection, the Court’s contribution to international peace was, if anything, preventive in nature. For territorial questions or questions concerning the treatment of persons and property are the source of numerous conflicts. The judgments of the Court which settled these questions were enforced by the parties without any particular difficulties. The disputes in question were thus definitively settled and the parties satisfied. The confidence which the Court progressively gained among the international community of States was reflected in various resolutions and statements of other un organs, which emphasized the potential contribution of the Court to the fulfilment of the purposes and goals of the un, in the exercise of its contentious or advisory jurisdiction. With the 1982 Manila Declaration, the General Assembly recalled the terms of Article 33 of the un Charter, placing particular emphasis on judicial settlement.56 It specified among other things that recourse to the judicial settlement 55 56

S. Rosenne, The Law and Practice of the International Court, 2006, Vol. i, pp. 163–164; emphasis added. Manila Declaration on the Peaceful Settlement of International Disputes, 15 November 1982, A/RES/37/10.

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of legal disputes, particularly referral to the icj, should not be considered an unfriendly act between States. Moreover, in its 1988 Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security,57 the General Assembly underlined the role of the Security Council and its duty to co-operate more closely with the icj. The text referred in particular to the need for the Security Council to make more frequent use of the advisory procedure for the purposes of clarifying legal issues, at an early stage, so as to promote the prevention and removal of disputes or situations.58 Several un Secretary-Generals have also emphasized the role of the Court in the fulfilment of the goals and principles of the United Nations, and put their best efforts into promoting and supporting the Court’s mission: Boutros Boutros-Ghali called for greater reliance on the Court, as an important contributor to United Nations peace-making, and made a number of suggestions in order to enhance the peaceful adjudication of disputes by the Court, including making use of its advisory jurisdiction.59 Kofi Annan and Ban Ki-moon launched several initiatives with a view to increase the number of Member States that accept as compulsory the jurisdiction of the Court.60 Clearly it is not possible to state here precisely how and on how many occasions over the years the “co-operation” of the Court with the other un organs 57

58

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Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, 5 December 1988, A/RES/43/51. “The Security Council, if it is appropriate for promoting the prevention and removal of disputes or situations, should, at an early stage, consider making use of the provisions of the Charter concerning the possibility of requesting the International Court of Justice to give an advisory opinion on any legal question”, para. 15. The General Assembly Declaration on the Rule of Law (2012) simply “recall[s] the ability of the relevant organs of the United Nations to request advisory opinions from the International Court of Justice”, A/RES/67/1, para. 31. As already indicated above (see supra note 151, chapter 2), the Secretary-General recommended that he should also be authorized to request advisory opinions from the Court, An Agenda for Peace. Preventive diplomacy, peace-making and peace-keeping, Report of the Secretary-General (1992), A/47/277, paras. 38–39. This proposal has not been taken up by subsequent incumbents; see, for example, Delivering justice: a programme of action to strengthen the rule of law at the national and international levels, Report of the SecretaryGeneral (2012), A/66/749, para. 15 (b). In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, 2005, A/59/2005, para. 139; Delivering Justice: a Programme of Action to Strengthen the Rule of Law at the National and International Levels, Report of the Secretary-General, United Nations, 2012, A/66/749, para 15(b).

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has prevented the escalation of situations or disputes likely to endanger international peace and security. A few examples may, however, illustrate the potential of such an effective association for the accomplishment of the aims of the United Nations and the maintenance of international peace and security. Regarding the contentious jurisdiction of the Court, as already indicated, both the Security Council and the General Assembly may recommend the submission of a legal dispute to the Court.61 The Secretary-General may also play a political role, either ex officio or in fulfilling a mandate entrusted to him by either of these organs (for example, good offices), by advising or recommending recourse to the Court for the settlement of a particular dispute between States, or by offering his support and assistance to those States should they wish to conclude a special agreement by which they could refer their dispute to the Court. In addition to previous remarks on issues of compliance with and application of the Court’s judgments,62 one has to mention the possible assistance provided to the parties by the Secretary-General in the implementation of a judgment rendered by the Court. The most significant example occurred in relation to the border dispute between Cameroon and Nigeria. Further to the Judgment delivered by the Court on 10 October 2002, the Secretary-General offered his good offices to the Parties and, at their request, helped to establish a Cameroon-Nigeria Mixed Commission, which led the process of implementing the Court’s Judgment.63 61

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In one instance, concerning the failure of South Africa to administer the Mandated Territory of South West Africa (today Namibia) in accordance with the principles and purposes of the Mandate entrusted to it by the League of Nations, the General Assembly drew the attention of Member States “to the legal action open to [them] to refer any dispute with the Union of South West Africa concerning the interpretation or application of the Mandate for South West Africa to the International Court of Justice for adjudication in accordance with article 7 of the Mandate read in conjunction with Article 37 of the Statute of the Court”, resolution 1361 (xiv), 17 November 1959. Supra Chapter 2.2. See the Security Council Press Statement on Bakassi Peninsula Developments, in which the members of the Security Council “welcome[d] the peaceful conclusion on 13 August 2013 of the special transitional regime established by the Greentree Agreement concerning the Bakassi Peninsula[,]…praise[d] the Governments of Cameroon and Nigeria for their commitment in honouring their obligations to comply with the decisions of the International Court of Justice and for the responsible and peaceful way in which they ha[d] resolved their differences on this matter[,]…commend[ed] the efforts of the Cameroon-Nigeria Mixed Commission in facilitating the performance of the obligations under the judgment of the International Court of Justice and the demarcating of the land and maritime boundary between Cameroon and Nigeria[, and] the role played by the

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Mention should also be made here of the initiative taken by the SecretaryGeneral to establish, in 1989, a Trust Fund to assist States in the settlement of disputes through the Court. The main purpose of this Trust Fund is to encourage the peaceful settlement of disputes by providing financial assistance to States as an incentive to submit their disputes to the icj. The Trust Fund offers financial assistance to States to cover any expenses incurred in connection with disputes submitted to the Court (the cost of agents, counsel, experts and witnesses, the cost of preparing written pleadings, etc.). It may be used in cases in which the Court’s jurisdiction and the admissibility of the application are not (or no longer) contested (i.e., in which no preliminary objections have been raised or in which any preliminary objections raised have been withdrawn or rejected). The Trust Fund may also assist States in the execution of a judgment of the Court.64 Regarding the advisory jurisdiction of the Court, reference is made to what was said earlier about the various organs entitled to request an advisory opinion from the Court.65 However, mention should also be made of the role of the Secretary-General (or his equivalent in other organizations) in connection with advisory proceedings before the Court: he/she is required to send the Court all documents likely to throw light upon the question (Art. 65, para. 2, of the Statute, Art. 104 of the Rules), and may on occasion be invited to supplement such documents with a written and/or oral statement. Notwithstanding the fact that the Court’s advisory opinions are not in themselves binding upon the requesting organs or Member States, their implementation may call for various follow-up actions by the organs or States concerned, as deemed appropriate by the latter. This is clearly in keeping with the purpose of the Court’s advisory role as a form of direct participation in the activities of the Organization.66 For example, further to the Court’s Advisory Opinion in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied United Nations Office for West Africa (unowa), in particular, the efforts of the SecretaryGeneral’s Special Representative for West Africa in chairing the Cameroon-Nigeria Mixed Commission and the Follow-Up Committee established to monitor the implementation of the Greentree Agreement”, SC/11094 (15 August 2013). 64 Since its creation in 1989, seven States have benefited from the Trust Fund’s financial assistance. See http://www.un.org/law/trustfund/trustfund.htm. The Fund received two further applications, in 2013, from Burkina Faso and Niger, requesting financial assistance to implement the judgment of the Court by carrying out the demarcation of the pertinent section of their common boundary on the basis of the Court’s delimitation, see A/69/337 (2014), para. 4. 65 See supra, Chapter 2.2. 66 See supra, Chapter 2.3.

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Palestinian Territory, and in accordance with the recommendations of the Secretary-General,67 the General Assembly established the United Nations Register of Damage caused by the Construction of the Wall in the Occupied Palestinian Territory (hereafter “the Register”).68 It is, to date, the only measure taken by the United Nations in the application of the Court’s Advisory Opinion.69 The Register serves as a list of claims submitted to the Office of the Register by all persons who sustained material damage as a result of the construction of the Wall.70 Registration of damage is a technical, fact-finding process and the Office of the Register is not a compensation commission or a claims-resolution facility, nor is it a judicial or quasi-judicial body.71 The Register itself does not appear to be publicly available, nor does it appear from the reports made to the Secretary-General that any action is being taken with regard to the claims made, beyond their inclusion in the Register.72 The Complementary Roles of the Principal un Organs in the Maintenance of International Peace and Security (with particular emphasis on the relationship between the Court and the Security Council) (i) The Indication of Provisional Measures in the Context of an ongoing Armed Conflict The indication of provisional measures in a situation of ongoing hostilities has often been regarded as a significant, and at times controversial, development (b)

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Letter dated 11 January 2005 from the Secretary-General to the President of the General Assembly, un doc. A/ES-10/294, 13 January 2005. Establishment of the United Nations Register of Damage caused by the Construction of the Wall in the Occupied Palestinian Territory, un doc. A/ES-10/L.20/Rev.1, 15 December 2006. The Court replied to the question put by the General Assembly by stating, inter alia, that “Israel [was] under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem”, and that “[t]he 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”, i.c.j. Reports 2004, p. 202, para. 163 (3). Establishment of the United Nations Register of Damage caused by the Construction of the Wall in the Occupied Palestinian Territory, supra note 68, para. 3. Letter dated 11 January 2005 from the Secretary-General to the President of the General Assembly, un doc. A/ES-10/294, 13 January 2005, para. i. See letter dated 30 April 2009 from the Secretary-General to the President of the General Assembly, un doc. A/ES-10/455 (4 May 2009) and letter dated 27 June 2011 from the Secretary-General to the President of the General Assembly, un doc. A/ES-10/522, 12 July 2011.

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in the arsenal available to the Court in order to contribute directly to the maintenance, or even restoration, of international peace. The case concerning Military and Paramilitary Activities in and against Nicaragua was the first in which the Court indicated, by an Order of 10 May 1984, provisional measures concerning, directly or indirectly, the use of force between the Parties, pending the Judgment on the merits.73 Since 1986, the Court has been asked to indicate provisional measures in several cases where the dispute arose out of, or was connected to, a past or present situation of hostilities or armed conflict (or involving the risk thereof).74 In view of such abundant practice, concern has often been expressed that the Court could exceed the parameters of its judicial function and enter into 73

The Court indicated the following provisional measures: “The United States of America should immediately cease and refrain from any action restricting, blocking or endangering access to or from Nicaraguan ports, and, in particular, the laying of mines”; “[t]he right to sovereignty and to political independence possessed by the Republic of Nicaragua, like any other State of the region or of the world, should be fully respected and should not in any way be jeopardized by any military and paramilitary activities which are prohibited by the principles of international law, in particular the principle that States should refrain in their international relations from the threat or use of force against the territorial integrity or the political independence of any State, and the principle concerning the duty not to intervene in matters within the domestic jurisdiction of a State, principles embodied in the United Nations Charter and the Charter of the Organization of American States”; “[t] he Governments of the United States of America and the Republic of Nicaragua should each of them ensure that no action of any kind is taken which might aggravate or extend the dispute submitted to the Court”; and “[t]he Governments of the United States of America and the Republic of Nicaragua should each of them ensure that no action is taken which might prejudice the rights of the other Party in respect of the carrying out of whatever decision the Court may render in the case”, i.c.j. Reports 1984, p. 187. 74 See Frontier Dispute (Burkina Faso/Republic of Mali); Border and Transborder Armed Actions (Nicaragua v. Honduras); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) and (Libyan Arab Jamahiriya v. United States of America); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening); the cases concerning Legality of Use of Force; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda); Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda); Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation); Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand). Cases where the requests were not granted, or were withdrawn by the Applicant, are underlined.

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some form of “competition” with the Security Council, which bears the primary responsibility for the maintenance of international peace and security. Some have feared that States may try to abuse requests for provisional measures, so as to take advantage of the binding effect of a Court order, as acknowledged by the latter in the LaGrand case, and that the Court would subsequently be unable to deal with instances of non-compliance by the parties, which would risk its credibility.75 On the other hand, the special and unique position enjoyed by the Court, as the principal judicial organ of the United Nations, has been emphasized in support of its contribution, to the greatest extent possible under its Statute, to the main aim of the Organization. The, now settled, question of referring in parallel the same situation or events to the Court and to other organs, in particular the un Security Council, has already been dealt with. The so-called “litispendence” exception does not apply in such cases, and the fact that the Security Council is seised of a matter does not preclude the indication of provisional measures by the Court, in accordance with its Statute, including in situations where hostilities are ongoing. Two other issues have been raised in connection with the powers of the Court pursuant to Article 41, paragraph 1, of its Statute, according to which the Court “shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party”. First, a rather “radical argument” has been made that, “in cases involving the use of force[,] requests for provisional measures should not be refused on grounds of lack of prima facie jurisdiction on the merits”.76 While such a 75

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In the words of Judge Oda: “If the Court agrees to be seised of the application or request for the indication of provisional measures of one State in such circumstances [i.e., in disputes raising issues of armed aggression and threats to international peace], then the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubts as to the judicial role to be played by the Court in the international community.” (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. 132, para. 6.). C. Gray, “The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua”, e.j.i.l. (2003), Vol. 14, No. 5, pp. 867–905, 889 et seq. See, for example, the dissenting opinion of Judge Shi in the case concerning the Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, i.c.j. Reports 1999 (i), p. 207. The judge stated that he was of the opinion that, confronted with an urgent situation involving the use of force,

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position has never been endorsed by the Court, the latter has not refrained, in some cases, from addressing recommendations to the parties or from making pronouncements of a substantial nature, even when it had not found that it had prima facie jurisdiction over the dispute in question. In the cases concerning the Legality of the Use of Force, the Court refused to indicate the provisional measures requested on the grounds of a lack of jurisdiction prima facie, but it nonetheless reminded the Parties, in its Orders, that “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, including humanitarian law;…any disputes relating to the legality of such acts are required to be resolved by peaceful means;…in this context the parties should take care not to aggravate or extend the dispute;…when such a dispute gives rise to a threat to the peace, breach of the peace of act of aggression, the Security Council has special responsibilities under Chapter 7 of the Charter”.77 A similar appeal to the Parties was made by the Court in the case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), notwithstanding the fact that the Court considered that it did not have the prima facie jurisdiction necessary to indicate the provisional measures requested.78 In particular, the Court

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“the Court ought to have contributed to the maintenance of international peace and security in so far as its judicial functions permit. The Court would have been fully justified in point of law if, immediately upon receipt of the request by the Applicant for the indication of provisional measures, and regardless of what might be its conclusion on prima facie jurisdiction pending its final decision, it had issued a general statement appealing to the Parties to act in compliance with their obligations under the Charter of the United Nations and all other rules of international law relevant to the situation, including international humanitarian law, and at least not to aggravate or extend their dispute. In my view, nothing in the Statute or Rules of Court prohibits the Court from so acting. According to the Charter of the United Nations, the Court is after all the principal judicial organ of the United Nations, with its Statute as an integral part of the Charter; and by virtue of the purposes and principles of the Charter, including Chapter 6 (Pacific Settlement of Disputes), the Court has been assigned a role within the general framework of the United Nations for the maintenance of international peace and security. There is no doubt that to issue such a general statement of appeal is within the implied powers of the Court in the exercise of its judicial functions. It is deplorable that the Court has failed to take an opportunity to make its due contribution to the maintenance of international peace and security when that is most needed”. See, for example, Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, i.c.j. Reports 1999 (i), p. 140, paras. 48–50. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, i.c.j Reports 2002, pp. 249–250, para. 93:

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“wish[ed] to stress the necessity for the Parties to [the] proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which ha[d] been observed even recently”.79 This kind of statement, although included only in the reasoning of the Order, and not in the operative part, has been criticized on the grounds that it goes beyond the limited and consensual jurisdiction of the Court, and because the Court’s pronouncements “might be deemed to lend credence to the factual allegations submitted by the Party seeking the provisional measures”.80 However controversial this practice may have appeared to some Members of the Court or commentators, and notwithstanding the question of its judicial propriety,81 it is rather doubtful that the Court could interfere, in making such (mostly) exhortatory statements, with actions or measures taken by other

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“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 violations of human rights and international humanitarian law which have been observed even recently”. Ibid. Declaration of Judge Buergenthal, ibid., p. 259. This last criticism might be nuanced, in the circumstances of this particular case, by taking into account the fact that the Court relied on a great number of resolutions adopted by the Security Council concerning the situation in the region and acknowledging the existence of the said violations (see supra, note 78). As a matter of course, the Court also recalled in its Order that, like every decision on a request for the indication of provisional measures, “the findings reached by the Court in the present proceedings in no way prejudge the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves”, i.c.j. Reports 2002, p. 249, para. 90. For a discussion of the (possibly inherent) power of the Court to address recommendations to the parties, a power which might extend beyond just those cases involving the use of force, see J. d’Aspremont, “The Recommendations made by the International Court of Justice”, i.c.l.q. (2007), Vol. 56, pp. 185–198, and H. Thirlway, “The Recommendations

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organs discharging functions in the maintenance of international peace and security.82 Another, more remarkable aspect of the recent practice of the Court when dealing with requests for provisional measures, in cases involving hostilities or the risk of such hostilities, relates to the indication of provisional measures of a military nature or character: in some situations, the Court’s orders have not “confine[d] [themselves] to the indication of measures preserving rights in the traditional sense; [they] directly invite[d] the Parties [thus with binding effect, according to the Court’s Judgment in the LaGrand case] to take measures of a military nature: cessation of hostilities, refraining from any action by armed forces, freezing of the positions of the armed forces… Such decisions represent, on the one hand, measures required by the circumstances of the case which are evaluated by the Court in the exercise of its discretionary power and, on the other hand, a contribution by the Court to ensuring the observance of one of the principal obligations of the United Nations and of all its organs in relation to the maintenance of international peace and security.”83 Following the Order adopted by the Court in the case concerning Military and Paramilitary Activities in and against Nicaragua,84 it was not until the made by the International Court of Justice: A Sceptical View”, i.c.l.q. (2009), Vol. 58, pp. 151–162. 82 On the contrary, in the cases cited above, the Court’s references to the Security Council and/or to its resolutions may be seen as an indirect way, in the absence of prima facie jurisdiction allowing the Court to indicate provisional measures, of ensuring that the rights of the parties are nevertheless protected, to the greatest extent possible, by reminding them of their obligations under the Security Council’s decisions. Such references thus underline the link between the two organs and their mutual support for, rather than interference with, the actions of one another. 83 Declaration by Judge Ranjeva, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, i.c.j. Reports 1996, p. 29. It is possible to add to the list of measures of a military nature the decision by which the Court enjoined the Parties to facilitate, and to refrain from placing any impediment to, humanitarian assistance to the local populations in support of the rights to which those local populations are entitled under the Convention on the Elimination of Racial Discrimination, further to the armed conflict which took place within South Ossetia and Abkhazia and adjacent areas in Georgia, in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, i.c.j. Reports 2008, p. 398, para. 149 (B). See also the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), infra. 84 See supra, note 73.

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Frontier Dispute case between Burkina Faso and Mali that a Chamber of the Court really initiated such practice. During the examination of this case, certain grave incidents took place between the armed forces of both Parties in the frontier region. Although it rapidly proved possible to conclude a ceasefire agreement, both Parties requested the indication of provisional measures. The Chamber indicated, pending its final decision, that the Parties should each ensure that no action of any kind would be taken which might aggravate or extend the dispute submitted to the Chamber, or prejudice the right of the other Party to compliance with whatever judgment the Chamber may render in the case; that both Parties should continue to observe the ceasefire instituted by agreement; and that they should withdraw their armed forces to such positions, or behind such lines, as may, within twenty days of the date of the…Order, be determined by an agreement between those Governments, it being understood that the terms of the troop withdrawal [would] be laid down by the agreement in question and that, failing such agreement, the Chamber will itself indicate them by means of an Order.85 The Chamber considered that independently of the requests submitted by the Parties for the indication of provisional measures, the Court or, accordingly, the Chamber possesse[d] by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require.86

It added that, in particular, when two States jointly decide to have recourse to…the principal judicial organ of the United Nations, with a view to the peaceful settlement of a dispute, in accordance with Article 2, paragraph 3, and Article 33 of the Charter of the United Nations, and incidents subsequently occur which not merely are likely to extend or aggravate the dispute, but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes, there can be no doubt 85 86

Frontier Dispute (Burkina Faso/Mali), Provisional Measures, Order of 10 January 1986, i.c.j. Reports 1986, pp. 11–12, para. 32. Ibid., p. 9, para. 18.

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of the [Court]’s power and duty to indicate, if need be, such provisional measures as may conduce to the due administration of justice.87 More generally, it has been acknowledged, since as early as the time of the pcij, that Article 41 of the Statute applies 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.88 Subsequent to the Frontier Dispute case, the Court made orders in three other cases directing both parties to withdraw their armed forces from a region of potential or actual armed conflict.89 In the last of these cases, the Court went as far as establishing a “provisional demilitarized zone”, in order to prevent 87 88

89

Ibid., p. 9, para. 19. Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, p.c.i.j., Series A/B, No. 79, p. 199; see also LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 503, para. 103. After reserving the question (see Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, i.c.j. Reports 1976, p. 12, para. 36), the icj specified that measures only intended to prevent the aggravation or extension of a dispute cannot be indicated alone, since they are not aimed, as such, at protecting particular rights at issue in the case at hand; see Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, i.c.j. Reports 2007 (i), p. 16, paras. 49–50. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, i.c.j. Reports 1996 (i), p. 24, para. 49: “Both Parties should ensure that the presence of any armed forces in the Bakassi Peninsula does not extend beyond the positions in which they were situated prior to 3 February 1996.” Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, i.c.j. Reports 2011 (i), pp. 27–28, para. 86 (1): “Each Party shall refrain from sending to, or maintaining in the disputed territory, including the caño, any personnel, whether civilian, police or security.” Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, i.c.j. Reports 2011, p. 555, para. 69 (B): “Both Parties shall immediately withdraw their military personnel currently present in the provisional demilitarized zone, as defined in paragraph 62 of the present Order, and refrain from any military presence within that zone and from any armed activity directed at that zone.”

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the reoccurrence of armed clashes between the parties. It is remarkable that this zone, around the area of the Temple of Preah Vihear, covered areas indisputably situated both in Cambodian and Thailand territory, from which their military personal was thus provisionally excluded.90 By delimitating such a provisional demilitarized zone, the Court exercised to its fullest extent its power “to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require”.91 Its decision attracted some criticism and doubts as to whether it was in complete conformity with the power entrusted to the Court under Article 41. For the then President of the Court, Judge Owada, “this [decision] clearly [went] beyond the power of the Court”.92 Nevertheless, the Court considered that the indication of such measures, in order to prevent the aggravation or extension of the dispute (an object 90

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The Court considered that “the area had been the scene of armed clashes between the Parties and…that such clashes [might] reoccur”; that it was for the Court “to ensure, in the context of these proceedings, that no irreparable damage [was] caused to persons or property in the area pending the delivery of its Judgment on the request for interpretation”; that “moreover, in order to prevent irreparable damage from occurring, all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court [would] render on the request for interpretation submitted by Cambodia”; and that “therefore,…it [was] necessary, in order to protect the rights which [were] at issue in these proceedings, to define a zone which [should] be kept provisionally free of all military personnel, without prejudice to normal administration, including the presence of non-military personnel necessary to ensure the security of persons and property”, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, i.c.j. Reports 2011, p. 552, para. 61. The Court considered that “when it is indicating provisional measures for the purpose of preserving specific rights, [it], independently of the parties’ requests, also possesses the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require”, ibid., pp. 551–552, para. 59; emphasis added. Cf. note 88. Dissenting opinion of Judge Owada, ibid., p. 560, para. 10. The judge added: “The legal situation would be quite different if such provisional measures were taken by the Security Council under Chapter 7 of the United Nations Charter ‘[i]n order to prevent an aggravation of the situation’ (Charter, Art. 40). The Security Council is expressly empowered to take such ‘provisional measures’ under the Charter, for the specific purpose referred to in its Article 40. The International Court of Justice is not the Security Council; the Court is not empowered by its Statute, nor authorized by the United Nations, to take measures, even on a provisional basis, which would encroach upon the sovereignty of a State without its consent, either explicit or implicit, even with the best of intentions, id., para. 11”.

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which, strictly speaking, could appear to extend beyond the subject-matter of the dispute at hand),93 was justified in view of the urgent risk that the rights which Cambodia (plausibly) claimed to hold under the terms of the 1962 Judgment in the area of the Temple could have suffered “irreparable prejudice resulting from the military activities in that area and, in particular, from the loss of life, bodily injuries and damage caused to the Temple and the property associated with it”.94 The Court thus intended to adhere to the strict conditions upon which the indication of provisional measures is based under Article 41 of its Statute.95 Clearly, it enjoys a wide margin of appreciation with regard to the substance of the measures required in the prevailing circumstances, independently of the requests made by one or both parties in this respect.96 (ii)

A Role for the Court in the “judicial review” of Acts of the Security Council (or other un organs)? The indication of provisional measures of a military character raised the question of whether, and if so to what extent, the Court can directly adopt measures in order to prevent or remove threats to peace or breaches of peace in the context of proceedings pending before it.

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Article 60 of the Court’s Statute provides that the judgment in a case “is final and without appeal”. It continues, “[i]n the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”. See above Chapter 2.2 (note 92). In such cases, the subject-matter of the dispute is rather narrow, and the “rights” claimed by the parties in this respect might appear as being very limited in scope. See the dissenting opinion of Judge Donoghue, ibid., pp. 613 et seq. 94 Ibid., p. 551, para. 55. 95 See supra, note 88. 96 “[T]he Court has the power under its Statute to indicate measures that are in whole or in part other than those requested, or measures that are addressed to the party which has itself made the request, as Article 75, paragraph 2, of the Rules of Court expressly states”, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, i.c.j. Reports 2011, p. 551, para. 58. Contrary to what the Court seemed to suggest in the Aegean Sea Continental Shelf case, a Chamber of the Court in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) made it clear that it is “independently of the requests submitted by the Parties for the indication of provisional measures, [that] the Court…possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require” (supra, note 86), but not independently of the object and purpose of the provisional measures under Article 41 (the preservation of the respective rights of the parties).

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A distinct, although related, question is whether (and, if so, how and to what extent) the Court has control over the action and measures taken by other un organs, in particular the binding decisions that the Security Council has the power to make under the un Charter. The possibility of Security Council decisions being subject to some form of judicial review was discussed at the San Francisco Conference in 1945, at which the participating States submitted their amendments on the “Proposals of Dumbarton Oaks for a General International Organisation”. The Belgian delegation, which included renowned Professor Charles de Visscher, who had been a judge at the pcij (1937–1945) and was to become a judge at the icj (1946–1952), proposed an amendment allowing for the ex ante judicial review of decisions taken by the Security Council: [I]n the case where [the Security Council’s] recommended procedures should be inoperative, where it should judge the situation thus created to be dangerous for the maintenance of International peace and security, the Security Council would have to take whatever equitable decision could settle the difference peacefully. However, before a project for the settlement of a difference, drawn up by the Council or by any other body became final, each of the States concerned should be able to ask an advisory opinion from the [International] Court of Justice as to whether the decision respected its independence and vital rights.97 This, at first sight, rather moderate amendment proposed by Belgium was, however, met with considerable resistance from the delegations of the United States, the United Kingdom, the Soviet Union and China, and was ultimately withdrawn. The form of judicial review proposed by Belgium would have been somewhat “mild”, since an advisory opinion would not have had any binding effect on the Security Council and since the scope of the review, as conceived by Belgium, would have been limited to the issue of the independence and vital rights of the targeted State, not the general validity or legality of the measures envisaged as such. Be that as it may, it was considered to be too much of an interference in the exercise of the political powers of the Security Council, which was to be strengthened.98 97 98

United Nations Conference on International Organization (uncio), Vol. 3, pp. 332–333, doc. 2 of 5 February 1945 (English translation) G/7, pp. 2–3. See J. Salmon, “La Belgique et la cij: les fluctuations d’une politique juridique”, in L’Afrique et le droit international: variations sur l’organisation internationale: liber amicorum Raymond Ranjeva, Bruylant, 2013, pp. 577–596, p. 580.

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As a result, the icj Statute adopted in 1945 is silent on the matter; it does not contain any particular procedure for the review of Security Council resolutions, or any provisions which would allow the Court to perform any kind of review of those resolutions, whether by way of an advisory opinion or otherwise. Nevertheless, it is not excluded that the Court could be confronted with legal situations which require it to examine, incidentally or otherwise, if not the legality, at least the content and legal effects of Security Council resolutions. Thus, the Court, at different stages in its history, has had to make findings as to its power to effect a judicial review of resolutions adopted by organs of the United Nations, and by the Security Council in particular. It is first and foremost in cases concerning requests for advisory opinions that the matter has been raised and, to some extent, discussed by the Court. In Certain Expenses of the United Nations,99 the Court’s Advisory Opinion was issued on the request of the General Assembly, which had asked whether the expenditures of un missions in the Congo and the Middle East, authorized by General Assembly (and Security Council) resolutions, constituted expenditures within the meaning of Article 17, paragraph 2, of the un Charter. The request was thus related, in fact, to the question of whether some States, which opposed the decisions adopted by the un organs in establishing missions in the Congo and the Middle East (for political as well as legal reasons), were bound to bear the expenses of such missions as Members of the United Nations. Article 17, paragraph 2, of the un Charter provides only that: “The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly”. The Court deemed it necessary to set out the general legal system of the Charter and, in particular, the distribution of powers among the principal organs of the United Nations. Notably, it held that: In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted; the opinion which the Court is in course of rendering

99

Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, i.c.j. Reports 1962, p. 151.

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is an advisory opinion. As anticipated in 1945 therefore, each organ must, in the first place at least, determine its own jurisdiction. If the Security Council, for example, adopts a resolution purportedly for the maintenance of international peace and security and if, in accordance with a mandate or authorization in such resolution, the Secretary-General incurs financial obligations, these amounts must be presumed to constitute ‘expenses of the Organization’.100 Nevertheless, the Court undertook a close scrutiny of the relevant resolutions adopted by the General Assembly and the Security Council, and examined whether the activities authorized were within the scope of the Charter. Indeed, the Court pointed out that, under Article 17, paragraph 2, of the Charter, the “expenses of the Organization” are the amounts paid out to defray the costs of carrying out the purposes of the Organization. Therefore, [i]n determining whether the actual expenditure authorized constitute ‘expenses of the Organization within the meaning of Article 17, paragraph 2, of the Charter’, the Court agree[d] that such expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure were made for a purpose which is not one of the purposes of the United Nations, it could not be considered an ‘expense of the Organization’.101 100 Ibid., p. 168. 101 Ibid., p. 167. The Court addressed some of the limits within which it may exercise control over the decisions of the General Assembly (and by the same token highlighted the large margin of discretion enjoyed by the political organs): “The primary place ascribed [among the purposes of the Organization] to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition. These purposes are broad indeed, but neither they nor the powers conferred to effectuate them are unlimited. Save as they have entrusted the Organization with the attainment of these common ends, the Member States retain their freedom of action. But when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization. If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization.” (Ibid., p. 168.)

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After examining the resolutions authorizing the expenditures in question, the Court concluded that they were so incurred, thereby also indirectly confirming the validity under the Charter of these resolutions.102 Another relevant example, again an advisory opinion, is the Namibia Opinion, concerning the continued presence in Namibia of the South African ­authorities despite the termination of the Mandate for South West Africa (Namibia) after 1966. After the adoption of a Security Council resolution calling upon South Africa to withdraw from the territory of Namibia, and the refusal of South Africa to follow up on this resolution, the Security Council adopted another resolution in 1970,103 declaring that the continued presence of the South African Government in Namibia was illegal and that all acts taken by the South African Government on behalf of or concerning Namibia after the termination of the Mandate were illegal and invalid; it further called upon all States to refrain from any dealings with the South African Government that were incompatible with that declaration. The matter came before the Court when the Security Council decided to request an advisory opinion on the legal consequences for States of the continued presence of South Africa in Namibia. In the course of the proceedings, the Court was confronted with different arguments, put forward by South Africa but also by other governments, directly relating to the alleged illegality of action taken by the General Assembly and the Security Council in terminating the Mandate of South Africa. In particular, these governments alleged, inter alia, that the General Assembly and the Security Council had acted beyond their authority (ultra vires) in ending that Mandate and in intending to enforce the withdrawal of South Africa from Namibia. The Court, in reply to these arguments, stated that

102 The Court also observed, from the outset, that the rejection of a French amendment to the drafting of the resolution requesting the advisory opinion (according to which the Court would have been asked to give an opinion on the question whether the expenditures relating to the stated operations were “decided on in conformity with the provisions of the Charter”) “[did] not constitute a directive to the Court to exclude from its consideration the question whether certain expenditures were ‘decided on in conformity with the Charter’, if the Court [found] such consideration appropriate. It [was] not to be assumed that the General Assembly would thus seek to fetter or hamper the Court in the discharge of its judicial functions; the Court must have full liberty to consider all relevant data available to it in forming an opinion on a question posed to it for an advisory opinion. (Ibid., p. 157.)”. 103 Security Council resolution 276 (1970).

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[u]ndoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned. The question of the validity or conformity with the Charter of General Assembly resolution 2145 (xxi) or of related Security Council resolutions does not form the subject of the request for advisory opinion. However, in the exercise of its judicial function and since objections have been advanced the Court, in the course of its reasoning, will consider these objections before determining any legal consequences arising from those resolutions.104 With regard to the resolution of the General Assembly terminating the Mandate of South Africa, the Court found, after examining its drafting history, context and earlier findings of the Court itself in a contentious case relating to the same situation, that [t]he resolution in question [was]…to be viewed as the exercise of the right to terminate a relationship in case of a deliberate and persistent violation of obligations which destroys the very object and purpose of that relationship.105 Concerning the actions taken by the Security Council, and the objections raised about the legal basis of the resolution by which the latter declared that South Africa’s continued presence in Namibia was illegal, the Court “limited” itself to stating that: As to the legal basis of the resolution, Article 24 of the Charter vests in the Security Council the necessary authority to take action such as that taken in the present case. The reference in paragraph 2 of this Article to specific powers of the Security Council under certain chapters of the Charter does not exclude the existence of general powers to discharge the responsibilities conferred in paragraph 1.106 The Court then addressed the binding nature of the Security Council decisions in question, and the legal consequences ensuing therefrom. 104 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. 45, para. 89. 105 Ibid., p. 47, para. 95. 106 Ibid., p. 52, para. 110.

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From some of the renowned statements of the Court which have just been recalled, one might draw the conclusion that the principal judicial organ of the United Nations does not consider itself to be a “constitutional court”, in the sense that it has never claimed to have the power to examine the validity or legality as such of an act of another principal organ of that Organization. It is therefore generally believed to be established that the Court has no powers of “judicial review” over these acts as such.107 In fact, the Court cannot invalidate a legal act issued by the Security Council, nor can it adopt any procedure aimed at declaring the illegality of a resolution adopted by the Security Council. That, however, does not imply that the Court is precluded from examining the legality of resolutions of un organs incidentally (or at least from interpreting them in order to determine their legal effects), when it is required to do so in the course of proceedings before it, be they advisory or contentious. The fact is that, in both of the advisory opinions referred to above, the Court eventually ruled on the accordance of un resolutions with the un Charter. Regarding the powers of the Court when exercising its contentious jurisdiction, its case law in this respect is relatively scarce, and still open to divergent interpretations. In the Lockerbie cases,108 the Court had to deal with an argument put forward by Libya concerning the legal effect of resolutions taken by the Security Council in relation to the bombing of an American aircraft over the Scottish town of Lockerbie on 21 December 1988. British and American investigations had concluded that Libyan State officials were responsible for the terrorist act. Both Governments requested Libya to surrender all those charged with the crime, to accept responsibility for the actions of its officials, to disclose all information relating to the crime and to pay appropriate compensation. The situation was considered by the Security Council, which adopted a resolution under Chapter 6 of the Charter, calling upon Libya to co-operate fully in establishing the responsibility for the Lockerbie bombing.109 Libya then filed Applications against the Governments of the United Kingdom and the United States, together with Requests for the indication of provisional measures, with regard to the protection of its rights under the 1971 .

107 See D. Bowett, “Judicial and political functions of the Security Council and the International Court of Justice”, in G. Abi-Saab, H. Fox (eds.), The Changing Constitution of the United Nations, biicl, 1997, pp. 73–88, p. 77. 108 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) and (Libyan Arab Jamahiriya v. United States of America), Orders of 14 April 1992, i.c.j. Reports 1992, pp. 3 and 114. 109 Resolution 731 (1992).

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Montreal Convention (for the suppression of unlawful acts against the safety of civil aviation), namely its right to institute, before its own tribunals, its own criminal proceedings against the suspects of the terrorist bombing, on the basis of the principle aut dedere aut judicare (“either extradite or prosecute”). Libya argued that the possibility of sanctions being imposed was imminent, that those sanctions would infringe its rights under the Montreal Convention and that the United Kingdom and the United States should refrain from taking any initiative within the Security Council regarding the exercise of its jurisdiction. Three days after the close of the hearings before the Court on Libya’s Requests for indication of provisional measures, the Security Council adopted a resolution under Chapter 7 of the Charter, requesting Libya to extradite two of its nationals suspected of being responsible for the terrorist act, and setting out sanctions against Libya and measures to be taken by “all States” to ensure compliance by Libya with its obligations.110 Libya contended, inter alia, that this new resolution of the Security Council should be suspended, pending the decision of the Court on the provisional measures. The United Kingdom and the United States, in turn, contended that the obligations under the said resolution and any measures potentially to be indicated by the Court would run a serious risk of conflicting, and that the Court should decline to grant the provisional measures requested. Both Respondents further contended that the Charter (in particular Arts. 25 and 103) and Security Council resolutions prevail in the event of a conflict with obligations under any other international agreement.111 The Court partly endorsed the latter argument, stating that: Whereas both Libya and the [United Kingdom] [United States], as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that 110 Resolution 748 (1992). 111 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, i.c.j. Reports 1992, p. 14, para. 37; 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), Provisional Measures, Order of 14 April 1992, i.c.j. Reports 1992, pp. 126–127, para. 42.

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respect prevail over their obligations under any other international agreement, including the Montreal Convention; Whereas the Court, while thus not at this stage called upon to determine definitively the legal effect of Security Council resolution 748 (1992), considers that, whatever the situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures; Whereas, furthermore, an indication of the measures requested by Libya would be likely to impair the rights which appear prima facie to be enjoyed by the [United Kingdom] [United States] by virtue of Security Council resolution 748 (1992).112 It is well known that the case continued, despite the Court’s rejection of Libya’s Requests for the indication of provisional measures. The Security Council, in the meantime, issued another resolution under Chapter 7 of the Charter, imposing more sanctions upon Libya and repeating that it should extradite the suspected Libyan nationals.113 Both Respondents raised preliminary objections to the jurisdiction of the Court, as well as to the admissibility of Libya’s Application, mainly arguing that there was no dispute between the Parties with regard to the Montreal Convention. The Respondents contended that the dispute was in reality between Libya and the Security Council, and hence, did not fall within the provisions of the compromissory clause of the Montreal Convention. The Court rejected that line of argument, noting that the resolutions in question had been adopted after the filing of the Application which was, in a­ ccordance with its constant jurisprudence, the sole relevant date for the establishment of its jurisdiction; hence, subsequent events in the factual or legal situation, could not affect the Court’s jurisdiction once the case was instituted.114 But the Respondents also contended that the Application had become moot and that, even accepting that, arguendo, the Court had jurisdiction, it could not exercise that jurisdiction because the obligations under Security Council resolutions 748 (1992) and 883 (1993), adopted after the filing of the 112 Ibid., p. 15, paras 39–41; and pp. 126–127, paras. 42–44. 113 Resolution 883 (1993). 114 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; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, i.c.j. Reports 1998, p. 129, para. 37.

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­ pplication, prevailed over the alleged rights under the Montreal Convention, A which could therefore no longer be validly claimed. The Court held that this objection did not possess an exclusively preliminary character, since any ruling on it would prejudge the merits.115 The cases were eventually withdrawn in 2003, before the Court could address the merits of the dispute, and in particular the issue of conflicts between the rights and obligations allegedly flowing from the different instruments concerned. The Court’s decision at the provisional measures stage has been interpreted as indicating not that all Security Council resolutions are automatically valid (a conclusion which is commonly drawn), but that there is a presumption of legality and that, prima facie, Member States of the United Nations are under an obligation to obey Security Council resolutions, which prevail over their obligations under any other international agreement by virtue of Article 103 of the Charter.116 There is no indication in the Orders of 1992 that the Court would refuse to examine the legality or validity of a resolution adopted by the Security Council, in particular under Chapter 7 of the Charter, as has sometimes been inferred; the Court simply indicated that it was not called upon, at the provisional measures stage, to determine the legal effects of resolution 748 in a definitive way, and that Libya’s purported rights were thus not “appropriate for protection” by the indication of such measures by the Court. On the contrary, it has been asserted that a literal reading of the Lockerbie Orders suggests that, faced with contentious proceedings in which the legality or validity of a un Security Council resolution is at issue, the Court would not regard itself as being automatically precluded from examining such issues.117 In other words, if States parties to proceedings before the Court were to advance arguments challenging the legality or validity of a particular resolution, the Court might well examine the legal effects of any such resolution as between the parties. A number of arguments have been advanced, both in support of and against the possibility of a “judicial review” of Security Council decisions by the Court and other international (or even regional or national) courts or tribunals.118 115 Ibid., pp. 29, para. 50, and 134, para. 49. 116 Separate opinion of Judge Shahabudeen, “The validity of the resolution…has, at this stage, to be presumed”, i.c.j. Reports 1992, p. 28. See also, dissenting opinion of Judge Bedjaoui, ibid., p. 46, para. 27, and The New World Order and the Security Council. Testing the Legality of its Acts, Martinus Nijhoff, 1994. 117 Bowett, op. cit. note 107, p. 83. 118 See R. Wolfrum, “Judicial Control of Security Decisions”, Rapport (first draft), Institut de droit international, Pedone, 2013, p. 48 et seq.

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While this is not the place to discuss all the arguments put forward in this debate, it is worth mentioning that the Court may well have an inherent (albeit incidental) power to interpret, and possibly examine, the legal effects of the decisions of the other principal organs of the United Nations, a power that is necessary for it to fulfil its judicial function, whether advisory or contentious.119 However, in the absence of an (unlikely) amendment to the Statute of the Court, it also remains true that a “judicial review” by the Court of the decisions of the other principal organs of the United Nations is not currently conceivable as such (i.e., a procedure whereby a State or individuals would be allowed to ask the Court to examine the legality of the decisions of those

Since the Lockerbie cases, several international tribunals have upheld their jurisdiction to examine the legality of a Security Council resolution, in particular the one by which such tribunals were created (under Chapter 7 of the United Charter). See i.c.t.y., Prosecutor v. Tadić, Appeals Judgement, IT-94-1-A, 15 July 1999. The Appeals Chamber reversed the decision of the Trial Chamber and found that it had, by virtue of its competence de la competence, the inherent power to determine its jurisdiction, including to investigate the legality of its creation by the Security Council. In the context of European law, in the case Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (Case T—306/01, [2005] ecr II—3533), the Court of First Instance of the European Communities (cfi) refused to review an eu regulation because this would have amounted to a review of measures decided by the Security Council, in a manner incompatible with the undertakings of the Member States under the un Charter, particularly Articles 25, 48, and 103. Nevertheless, the Court examined whether the Security Council had respected jus cogens, in particular certain fundamental rights, as this body of higher rules was binding on every subject of international law, including un organs themselves. Eventually the cfi concluded that there was no violation of jus cogens and therefore dismissed the actions. In the Appeal Judgement, the General Court of the eu did not uphold the decision of the cfi. It found that un Security Council resolutions fell outside the ambit of the Court’s judicial review and that the Court had no authority to question directly or indirectly the lawfulness of the Security Council resolutions in the light of eu community law, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission [2008] ecr I-06351. The General Court, however, reviewed the lawfulness of the eu regulation transposing the resolution, in the light of the fundamental principles of eu law. 119 Should the Court consider it appropriate, in the discharge of its judicial functions, to assess the legality of a decision adopted by another un organ (see Certain Expenses of the United Nations, supra, note 99 the next questions to be addressed would be: (1) against which corpus juris should such decision be tested (the Charter, jus cogens?) and (2) what “standard of review” should the Court apply, in order to leave to the organs concerned sufficient room to manoeuver in the discharge of their own functions.

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organs and to rule upon their validity with binding effect, either inter partes or erga omnes). Select Bibliography (see also the bibliography indicated above, Chapter 2) M. Bedjaoui, The New World Order and the Security Council. Testing the Legality of its Acts, Dordrecht: Martinus Nijhoff, 1994, 531 p. J.-P. Cot, M. Forteau, A. Pellet, La Charte des Nations Unies : commentaire article par article, Paris : Economica, 3rd ed., 2005, 1985 p. J.G. Merrills, International Dispute Settlement, New York: Cambridge University Press, 5th ed., 2011, 359 p. B. Simma et al., The Charter: A Commentary, Oxford: Oxford University Press, 2012, 3rd ed., 2 vol., 1236 p. The Settlement of International Disputes: basic documents, comp. by C.J. Tams and A. Tzanakopoulos, Oxford: Hart Publishing, 2012, 838 p.

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The icj and the Settlement of Land and Maritime Disputes In the Frontier Dispute case, the Chamber pointed out that “the process by which a court determines the line of a land boundary between two States can be clearly distinguished from the process by which it identifies the principles and rules applicable to the delimitation of the continental shelf”.1 That applies equally to maritime delimitation in general. The delimitation of land and maritime boundaries are governed by entirely different régimes, although, as it has been pointed out, there are similarities between the two processes.2 That being said, the purpose of the present Chapter is not to draw parallels between the two different kinds of international disputes relating to the land on the one hand, and to the sea on the other, and to the methods of judicial settlement of such disputes applied by the Court. The intention in the following sections is to give an overview of the case law of the Court in both land and maritime disputes, together with brief commentaries on individual cases, in order to highlight its contribution to the effective settlement of such disputes and to the clarification and development of the law in these areas. Indeed, land and maritime disputes represent a substantial part of the cases entered in the Court’s General List. 1

The Role of Legal Titles and Effectivités in the Settlement of Sovereignty and Frontier Disputes

Two kinds of “land disputes” have sometimes been distinguished, namely “delimitation disputes” and “disputes as to the attribution of territory”, or in other words “frontier disputes” and “sovereignty (or territorial) disputes”.3 In the 1 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, i.c.j. Reports 1986, p. 578, para. 47. 2 D. Bardonnet, “Frontières terrestres et frontières maritimes”, Annuaire Français de droit international, Vol. 35 (1989), pp. 1–64. 3 The distinction was articulated first and foremost by Paul de La Pradelle, in La Frontière: Etude de droit international, Les éditions internationales, Paris, 1928, pp. 141–142, and invoked before the Chamber of the Court, in the Frontier Dispute case, by the Burkina Faso; see Pleadings, vol. i, pp. 65–68 (Memorial of Burkina Faso), and vol. iv, pp. 69–70 (Oral Arguments by Prof. Pellet). © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004328860_006

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Frontier Dispute case, the Chamber felt it necessary to downplay the importance attached to such a distinction in the literature: According to this distinction, the former refer to delimitation operations affecting what has been described as ‘a portion of land which is not geographically autonomous’ whereas the object of the latter is the attribution of sovereignty over the whole of a geographical entity. Both Parties seem ultimately to have accepted that the present dispute belongs rather to the category of delimitation disputes, even though they fail to agree on the conclusions to be drawn from this. In fact, however, in the great majority of cases, including this one, the distinction outlined above is not so much a difference in kind but rather a difference of degree as to the way the operation in question is carried out. The effect of any delimitation, no matter how small the disputed area crossed by the line, is an apportionment of the areas of land lying on either side of the line…Moreover, the effect of any judicial decision rendered either in a dispute as to attribution of territory or in a delimitation dispute, is necessarily to establish a frontier. It is not without interest that certain recent codifying conventions have used formulae such as a treaty which ‘establishes a boundary’ or a ‘boundary established by a treaty’ to cover both delimitation treaties and treaties ceding or attributing territory (cf. Vienna Convention on the Law of Treaties, Art. 62; Vienna Convention on Succession of States in respect of Treaties, Art. 11). In both cases, a clarification is made of a given legal situation with declaratory effect from the date of the legal title upheld by the court. This clarification is itself a new element; it was because the parties wished to see that element introduced that they went to court at all. If there had been no dispute or uncertainty, they would not have wished to do so. Hence it is not so much the nature and qualification of the present dispute as the Statute of the Court and the terms of the Special Agreement which must determine the nature and extent of the Chamber’s task and functions in this case.4 Accordingly, no distinction appears to exist, a priori, between the rules applicable to the so-called “territorial” disputes and those applicable to the socalled “delimitation disputes”.5 When the Court is requested to determine the 4 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, i.c.j. Reports 1986, pp. 563–564, para. 17. 5 See L. Sánchez Rodríguez, « L’uti possidetis et les effectivités dans les contentieux territoriaux et frontaliers », Recueil des Cours, vol. 263 (1997), pp. 163–166.

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boundary between two States and equally when it is requested to decide upon the sovereignty over a territory, it searches, in the first place, for a “title”. The existence of such a title may be easily ascertained when a treaty confers on one of the parties sovereignty over the territory in dispute, or when a treaty establishes the course of a boundary between the litigating States. In such cases, as a matter of principle, the dispute must necessarily be determined on the basis of the existing title, notwithstanding elements of fact (effectivités) which might be invoked in support of a different conclusion as to the holder of sovereignty over the territory, or the exact delimitation of the boundary (see infra). When a treaty appears to constitute the relevant title for determining the territorial or sovereignty dispute, the Court is thus faced primarily with issues concerning the validity of the treaty and its interpretation. Thus for example, in the case concerning the Sovereignty over Certain Frontier Land the Court based its decision on a delimitation treaty of 1843 between Belgium and the Netherlands, granting sovereignty over a series of plots of land to Belgium. The Court rejected the Dutch claim that acts of sovereignty exercised by the Netherlands since 1843 had established Dutch sovereignty over the territories in question. After stating that “this [was] a claim to sovereignty in derogation of title established by treaty”,6 the Court considered whether Belgium might have “lost its sovereignty, by non-assertion of its rights and by acquiescence in acts of sovereignty alleged to have been exercised by the Netherlands at different times since 1843”.7 After examining the situation of the disputed plots of lands and the facts relied on by the Parties, the Court concluded that “Belgian sovereignty established in 1843 over the disputed plots ha[d] not been extinguished”.8 In the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/ Chad),9 the Court founded its decision on a 1955 Treaty between France and Libya, dealing with a broad range of issues concerning the future relationships between the two parties, including the question of frontiers between Libya and that part of French Equatorial Africa which was to become the neighbouring country, Chad. After establishing that Libya and Chad had recognized the validity of the said treaty and its relevance for the dispute, the Court proceeded to interpret the pertinent provisions thereof, which showed the 6 Case concerning Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment, i.c.j. Reports 1959, p. 227. 7 Idem. 8 Ibid., p. 230. 9 Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, 3 February 1994, i.c.j. Reports 1994, p. 5.

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existence of an agreed boundary between the litigating States. In the view of the Court, the terms of the Treaty signified that the parties had thereby recognized complete frontiers between their respective territories as resulting from the combined effect of all the instruments listed in an Annex i to the treaty; no relevant frontier was to be left undefined and no instrument listed in Annex i was superfluous. The Court observed that it would have been incompatible with a recognition couched in such terms to contend, as Libya had done, that only some of the specified instruments contributed to the definition of the frontier, or that a particular frontier remained unsettled. So to contend would have deprived Article 3 of the Treaty and Annex i of their ordinary meaning.10 The Court stated: The fixing of a frontier depends on the will of the sovereign States directly concerned. There is nothing to prevent the parties from deciding by mutual agreement to consider a certain line as a frontier, whatever the previous status of that line. If it was already a territorial boundary, it is confirmed purely and simply. If it was not previously a territorial boundary, the agreement of the parties to ‘recognize’ it as such invests it with a legal force which it had previously lacked. International conventions and case law evidence a variety of ways in which such recognition can be expressed.11 The Court found moreover that it could confine itself to taking account of the instruments listed in the Annex, without having to enquire whether those

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The Court also recalled that, in its Advisory Opinion of 21 November 1925, dealing with a provision of the Treaty of Lausanne “intended to lay down the frontier of Turkey”, the pcij had observed that “the very nature of a frontier and of any convention designed to establish frontiers between two countries imports that a frontier must constitute a definite boundary line throughout its length. It is…natural that any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier”, (Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925, p.c.i.j., Series B, No 12, p. 20), i.c.j. Reports 1994, pp. 23–24, para. 47; emphasis added. See also case concerning Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment, i.c.j. Reports 1959, pp. 221–222; Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, i.c.j. Reports 1962, p. 34: “In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality.” Ibid., p. 23, para. 45.

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instruments, listed by agreement between France and Libya, were in force at the date of Libya’s independence, or opposable to it.12 By entering into the Treaty, the parties recognized the frontiers to which the text of the Treaty referred; the task of the Court was thus to determine the exact content of the undertaking entered into. The Court further emphasized that: [t]he parties could have indicated the frontiers by specifying in words the course of the boundary, or by indicating it on a map, by way of illustration or otherwise; or they could have done both. They chose to proceed in a different manner and to establish, by agreement, the list of international instruments from which the frontiers resulted, but the course for which they elected presents no difficulties of interpretation. That being so, the Court’s task [was] clear: ‘Having before it a clause which [left] little to be desired in the nature of clearness, it [was] bound to apply this clause as it [stood], without considering whether other provisions might with advantage have been added to or substituted for it. (Acquisition of Polish N ­ ationality, Advisory Opinion, 1923, p.c.i.j., Series B, No. 7, p. 20.)’. The text of Article 3 clearly convey[ed] the intention of the parties to reach a definitive settlement of the question of their common frontiers. Article 3 and Annex i [were] intended to define frontiers by reference to legal instruments which would yield the course of such frontiers. Any other construction would [have been] contrary to one of the fundamental principles of interpretation of treaties, consistently upheld by international jurisprudence, namely that of effectiveness (see, for example, the Lighthouses Case between France and Greece, Judgment, 1934, p.c.i.j., Series A/B. No. 62, p. 27; 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. 35, para. 66; and Aegean Sea Continental Shelf; i.c.j. Reports 1978, p. 22, para. 52).13 In some situations, a legal title may be found to exist even if it has not been formally included in a treaty. In the case concerning the Arbitral Award made by the King of Spain,14 the dispute between Honduras and Nicaragua related to the delimitation of the boundary which had been effected by the King of 12 13 14

Ibid., p. 25, para. 50. Ibid., para. 51. Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, i.c.j. Reports 1960, p. 192.

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Spain by an Award of 23 December 1906. In that particular case, both States had agreed by treaty that any point or points of the boundary line which had not been settled by a Mixed Commission (whose own duty was, in accordance with the said treaty, to settle in a friendly manner all pending doubts and differences, and to demarcate on the spot the dividing line which was to constitute the boundary between the two Republics), should be submitted to the decision of an arbitral tribunal—as eventually occurred. Honduras contended that Nicaragua was bound to acknowledge the binding effect of the Award, while Nicaragua contested the Award’s validity and binding character. The Court found the Award to be valid and binding, as well as capable of execution, notwithstanding the omissions, contradictions or obscurities alleged by Nicaragua. In order to reach that conclusion, the Court based itself, inter alia, on the fact that Nicaragua had acted in such a way that it must be assumed to have recognized the validity of the Award. The Court thus found that Nicaragua’s conduct had confirmed that the international title vested in the Award had remained undisputed over a number of years. In the case concerning the Temple of Preah Vihear, the Court noted that the question of the sovereignty over the disputed temple could not be settled on the sole basis of a boundary agreement of 13 February 1904 between France and Siam.15 This agreement merely indicated in general terms how the boundary was to be established by a Mixed Franco-Siamese Commission. The Commission did indeed determine a boundary, but it did not include the area in which the disputed temple was situated. At the request of the Siamese Government, the French Government prepared maps, since the Commission had ceased operating. On one of those maps the temple of Preah Vihear was shown as located in Cambodian territory. Before the Court, Thailand contested every claim based on that particular map. It tried to prove, inter alia, that, since that map had not been drafted by the Mixed Commission, it did not have an obligatory character. The Court acknowledged that the map had never been approved by the Mixed Commission, since the latter had ceased to function some months before the production of the map. The map accordingly lacked binding character as such. However, the Court found that, by their conduct, the Parties, and in particular Thailand, had accepted the map as representing the outcome of the delimitation, and hence recognized the line on that map as being the frontier 15

Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, i.c.j. Reports 1962, p. 6. The Court subsequently referred to this case as an illustration of the variety of ways by which the parties may agree to “recognize” a territorial boundary, i.e. invest it with a legal force which it had previously lacked; see also Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment, i.c.j. Reports 1994, p. 23, para. 45.

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line, the effect of which was to situate Preah Vihear in Cambodian territory. The Court considered that “the acceptance of the Annex i map by the Parties caused the map to enter the treaty settlement and to become an integral part of it”.16 In the Court’s view, such acceptance could not be said to involve a departure from, and even a violation of the terms of the Treaty of 1904, wherever the map line diverged from the line of the watershed, for, as the Court [saw] the matter, the map (whether in all respects accurate by reference to the true watershed line or not) [had been] accepted by the Parties in 1908 and thereafter as constituting the result of the interpretation given by the two Governments to the delimitation which the Treaty itself required. In other words, the Parties at that time [had] adopted an interpretation of the treaty settlement which caused the map line, in so far as it may have departed from the line of the watershed, to prevail over the relevant clause of the treaty. Even if, however, the Court [had been] called upon to deal with the matter…as one solely of ordinary treaty interpretation, it [would have considered] that the interpretation to be given would [have been] the same.

.........................................................................................................................................................................

The indication of the line of the watershed in Article i of the 1904 Treaty was itself no more than an obvious and convenient way of describing a frontier line objectively, though in general terms. There [was], however, no reason to think that the Parties attached any special importance to the line of the watershed as such, as compared with the overriding importance, in the interests of finality, of adhering to the map line as eventually delimited and as accepted by them. The Court, therefore, [felt] bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area.17 * The definitive character attaching to the agreement reached by States regarding their boundaries, or concerning the sovereignty over a territory, which is aimed at ensuring stability and certainty in international legal relations, does not preclude such “title” from being transferred from one State to another.

16 17

Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, i.c.j. Reports 1962, p. 33. Ibid., pp. 34–35.

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The Court set out the relevant principles on the transfer of sovereignty in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). According to the Court’s Judgment of 23 May 2008 in that case: Any passing of sovereignty might be by way of agreement between the two States in question. Such an agreement might take the form of a treaty…The agreement might instead be tacit and arise from the conduct of the Parties. International law does not, in this matter, impose any particular form. Rather it places its emphasis on the parties’ intentions (cf. e.g., Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, i.c.j. Reports 1961, pp. 17, 31). Under certain circumstances, sovereignty over territory might pass as a result of the failure of the State which has sovereignty to respond to conduct à titre de souverain of the other State or, as Judge Huber put it in the Island of Palmas case, to concrete manifestations of the display of territorial sovereignty by the other State (Island of Palmas Case (Netherlands/United States of America), Award of 4 April 1928, riaa, Vol. ii, p. 839). Such manifestations of the display of sovereignty may call for a response if they are not to be opposable to the State in question. The absence of reaction may well amount to acquiescence. The concept of acquiescence ‘is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent…’ (Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, i.c.j. Reports 1984, p. 305, para. 130). That is to say, silence may also speak, but only if the conduct of the other State calls for a response. Critical for the Court’s assessment of the conduct of the Parties is the central importance in international law and relations of State sovereignty over territory and of the stability and certainty of that sovereignty. Because of that, any passing of sovereignty over territory on the basis of the conduct of the Parties, as set out above, must be manifested clearly and without any doubt by that conduct and the relevant facts. That is especially so if what may be involved, in the case of one of the Parties, is in effect the abandonment of sovereignty over part of its territory.18

18

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/ Singapore), i.c.j. Reports 2008, pp. 50–51, paras. 120–122.

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Judges, arbitrators and scholars have taken differing views on the characterization of such a transfer of sovereignty. In the case just cited, the Court emphasized agreement and acquiescence as two acceptable ways for any passing of sovereignty. In this context, mention could also have been made of the principle of “acquisitive prescription”.19 However, the Court has never formally endorsed or applied acquisitive prescription as such. In the case concerning Kasikili/Sedudu Island (Botswana/Namibia), the Court merely referred to the arguments advanced by the Parties concerning the conditions to be fulfilled on the basis of “the doctrine of prescription”.20 Yet, since the Court did not consider that the conditions cited by the Parties themselves were satisfied in that case, and that therefore Namibia’s argument on acquisitive prescription could not be accepted, the Court found that it did not “need [to] concern itself with the status of acquisitive prescription in international law or with the conditions for acquiring title to territory by prescription”.21 Indeed, as it has often been pointed out, if acquisitive prescription is primarily a “process by which a State could acquire sovereignty over a territory which did not originally belong to it and without the express consent of the original sovereign”,22 its recognition as a principle of international law could run counter to the principle, firmly rooted in international law, that the conduct of a State and the actual exercise of its authority over a territory, however continuous and effective, cannot displace the legal sovereign title owned by another State over the same territory without the latter’s consent.23 That said, acquisitive prescription may be seen as a legitimate way of transferring sovereignty, as long as the conditions for its application effectively include the implied consent of the State holding the original title. Thus it is generally assumed that, among “the conditions to be fulfilled to enable possession by a State to mature into a prescriptive title”,24 the possession must be peaceful and uninterrupted, and must be public.25 This last condition appears indeed as “an essential 19 20 21 22

23 24 25

See the joint dissenting opinion of Judges Simma and Abraham, ibid., i.c.j. Reports 2008, pp. 119–122. Kasikili/Sedudu Island (Botswana/Namibia), Judgment, i.c.j. Reports 1999, pp. 1101–1105, paras. 90–96. Ibid., p. 1105, para. 97. Joint dissenting opinion of Judges Simma and Abraham, Sovereignty over Pedra Branca/ Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), i.c.j. Reports 2008, p. 120, para. 11, emphasis added. Idem. Kasikili/Sedudu Island (Botswana/Namibia), Judgment, i.c.j. Reports 1999, p. 1103, para. 94. The two other conditions commonly required are that the possession by the State concerned must be exercised à titre de souverain and that it must endure for a certain length of time; idem.

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condition for establishing the acquiescence—through failure to respond—of the State holding the original title”.26 Nevertheless, the doctrine of acquisitive prescription remains primarily one of the traditional means of acquiring sovereignty in the absence of any title already held by a sovereign State over the territory in question (terra nullius).27 * As already indicated, in international law, pre-eminence is generally accorded to legal title over effective possession as a basis of sovereignty.28 It is only in cases where a territorial dispute cannot entirely or partially be solved on the basis of a “title”, either because it does not exist, or because it does not prove sufficient for that purpose, that the Court may have recourse to other elements, which might be found in the history of the disputed territory, specific elements of the conduct of the parties to the dispute (as well as third States in some instances), and, more generally, any activities which took place or were carried out in relation to the said territory. As opposed to the “title”, which might be found in a treaty or in another instrument establishing the source of the rights of the parties, these are elements of fact, so-called “effectivités”,29 to which the Court gives legal effect in determining a territorial or sovereignty dispute. Recourse to “effectivités” has essentially been made in the context of frontier delimitation disputes between States originating in the process of decolonization, both in Latin America and in Africa. In such cases, the Court applied the principle of uti possidetis juris, whereby territorial limits between different administrative divisions or colonies at the time of independence form the basis on which the boundaries between the newly independent States are to 26 27

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Joint dissenting opinion of Judges Simma and Abraham, i.c.j. Reports 2008, p. 122, para. 17. Reference has to be made here to the ancient distinction between “original means” of acquiring sovereignty over territory and “derivative roots of title” (“moyens originaires” et “moyens dérivés”), see for instance: Western Sahara, Advisory Opinion, i.c.j. Reports 1975, p. 39, paras. 79–80. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, i.c.j. Reports 1986, p. 566, para. 23 (the Chamber made this remark in relation to the principle of uti possidetis juris, but it may also apply more broadly). The Court also uses the French term, borrowed from the writings by Charles de Visscher, in the English version of its Judgment. No literal translation seems to exist in the English legal vocabulary. It has been sometimes referred to as “maps and conduct evincing effectivity”, id., i.c.j. Reports 1986, p. 575, para. 41. The terminology is not entirely clear, since an “effectivité” can also in itself constitute a title, in the sense of the source of a right, see infra note 41.

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be determined.30 Uti possidetis juris has been characterized as “a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs”.31 Application of this principle has been widely held as a means for achieving respect for intangibility of frontiers (inherited from colonization), the latter principle having been solemnly affirmed and accepted by African States at the time of their independence.32 In the Frontier Dispute (Burkina Faso/Mali), the Chamber considered that: [t]here are different aspects to this principle…The first aspect, emphasized by the Latin genitive juris, is found in the pre-eminence accorded to legal title over effective possession as a basis of sovereignty. Its purpose, at the time of the achievement of independence by the former Spanish colonies of America, was to scotch any designs which non-American colonizing powers might have on regions which had been assigned by the former metropolitan State to one division or another, but which were still uninhabited or unexplored. However, there is more to the principle of uti possidetis than this particular aspect[:] [t]he essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term. This is true both of the States which took shape in the regions of South America which were dependent on the Spanish Crown,

30 See ibid., pp. 564–567, paras. 19–26. 31 Ibid., p. 565, para. 20. The Chamber noted that it is “a firmly established principle of international law where decolonization is concerned”, and also emphasized its “general scope, in view of its exceptional importance for the African continent…”, idem. In this connection, the Chamber observed that “[t]he principle of uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch as this was the continent which first witnessed the phenomenon of decolonization involving the formation of a number of sovereign States on territory formerly belonging to a single metropolitan State. Nevertheless the principle is not a special rule which pertains solely to one specific system of international law”. 32 Ibid., pp. 564–566, paras. 19 and 22. But see the difference between these principles, as described by Judge Yusuf in his separate opinion attached to the Court’s Judgment in the Frontier Dispute (Burkina Faso/Niger), i.c.j. Reports 2013, pp. 134 et s.

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and of the States Parties to the present case, which took shape within the vast territories of French West Africa.33 Uti possidetis juris was also described by the Chamber as a “formula” expressing, in the context of decolonization, a (more) “general rule of international law”, namely “the obligation to respect pre-existing international frontiers in the event of a State succession”.34 But, in the traditional sense, the territorial title deriving from the uti possidetis juris results from “administrative boundaries being transformed into international frontiers in the full sense of the term”. That creates a special situation, in that the determination of a frontier line, although it is “a matter of international law…has…to be appraised in the light of [municipal colonial] law”.35 The line which the Court is required to determine in such cases has thus to be defined “not according to international law, but according to the [colonial] legislation which was applicable to [the territories of the States concerned at the moment when they became independent]”.36 In the Frontier Dispute, the Chamber wished to make it clear that, in doing so, the Court is not applying the law of the colonizing State as such:

33 34

35 36

Ibid., p. 566, para. 23. Ibid., para. 24. In this regard, the Chamber stated: “The territorial boundaries which have to be respected may also derive from international frontiers which previously divided a colony of one State from a colony of another, or indeed a colonial territory from the territory of an independent State, or one which was under protectorate, but had retained its international personality. There is no doubt that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis. Hence the numerous solemn affirmations of the intangibility of the frontiers existing at the time of the independence of African States, whether made by senior African statesmen or by organs of the Organization of African Unity itself, are evidently declaratory rather than constitutive: they recognize and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent”. The Court had previously observed that the “declarations [by African leaders at the dawn of independence] confirmed the maintenance of the territorial status quo at the time of independence, and stated the principle of respect both for the frontiers deriving from international agreements, and for those resulting from mere internal administrative divisions.” (Ibid., p. 565, para. 22.) Ibid., p. 568, para. 29. Ibidem.

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By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machinery of State succession. International law—and consequently the principle of uti possidetis—applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e., to the ‘photograph’ of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands. Hence international law does not effect any renvoi to the law established by the colonizing State, nor indeed to any legal rule unilaterally established by any State whatever; French law—especially legislation enacted by France for its colonies and territoires d’outre-mer— may play a role not in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of what has been called the ‘colonial heritage’, i.e. the ‘photograph of the territory’ at the critical date.37 Nonetheless, the reference to the territorial title existing at the critical date does not always prove sufficient in order to determine the delimitation line between the parties. Thus it often happens that the boundaries forming the colonial heritage, as established through legislative, administrative, or other legal instruments emanating from the colonizing State, may lack precision, or even be simply lacking altogether—the most obvious cause of territorial disputes between newly independent States. As the Chamber stated in its Judgment of 11 September 1992, in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening): There can be no doubt about the importance of the uti possidetis juris principle as one which has, in general, resulted in certain and stable frontiers throughout most of Central and South America…Nevertheless these 37

Ibid., p. 568, para. 30. For further reflections on the interpretation and application of the principle of uti possidetis juris, see Ph. Couvreur, “Notes sur le ‘droit’ colonial français dans la mise en œuvre du principe de l’uti possidetis juris par la Cour internationale de Justice”, Liber Amicorum en l’honneur de Raymond Ranjeva, Pedone, Paris, 2013, p. 111, and Ph. Couvreur, “Le ‘droit colonial’ dans le contentieux frontalier terrestre à la lumière de la jurisprudence récente de la cij”, in Droit des frontières internationales, Société française pour le droit international/Deutsche Gesellschaft für Internationales Recht, Pedone, Paris, 2016, pp. 127–144.

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certain and stable frontiers are not the ones that find their way before international tribunals for decision. These latter frontiers are almost invariably the ones in respect of which uti possidetis juris speaks for once with an uncertain voice. It can indeed almost be assumed that boundaries which, like the ones in this case, have remained unsettled since independence, are ones for which the uti possidetis juris arguments are themselves the subject of dispute.38 The Court has thus often to turn to elements of fact, so-called “colonial effectivités”, or “in other words, the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period”.39 It is in such a context that the Court has to draw a distinction between “legal titles” and “effectivités”, and their respective roles in the determination of the boundary, once again emphasizing the pre-eminence to be accorded, as a matter of principle, to the former over other evidence of the existing administrative boundary at the time of independence. In the Frontier Dispute (Burkina Faso/Mali), the Chamber described, “in general terms”, the legal relationship between acts constituting “effectivités” and the titles on which the implementation of the principle of uti possidetis is founded: For this purpose, a distinction must be drawn among several eventualities. Where the act corresponds exactly to law, where effective administration

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i.c.j. Reports 1992, p. 386, para. 41. See also the comments by the Chamber in the Frontier Dispute (Burkina Faso/Mali): “The Chamber has to ascertain where the frontier lay in 1932 in a region of Africa little known at the time and largely inhabited by nomads, in which transport and communications were very sketchy. In order to identify this the Chamber has to refer to the legislative and regulative texts, not all of which were even published; to the maps and sketch-maps compiled at the time, maps which are sometimes of doubtful accuracy and reliability and which contradict one another; and to administrative documents which, having been drawn up for the purposes of a system of government which ceased to exist nearly 30 years ago, have had to be obtained from various collections of archives. Although the Parties have provided it with a case file as complete as possible, the Chamber cannot however be certain of deciding the case on the basis of full knowledge of the facts. The case file shows inconsistencies and shortcomings.” Judgment, i.c.j. Reports 1986, p. 587, para. 64. Ibid., p. 586, para. 63. See also, Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), i.c.j. Reports 1992, p. 389, para. 45.

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is additional to the uti possidetis juris, the only role of effectivité is to confirm the exercise of the right derived from a legal title. 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. Finally, there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. The effectivité can then play an essential role in showing how the title is interpreted in practice.40 No exhaustive list has ever been drawn of what might constitute relevant “effectivités”. In abstract terms, “effectivités” are to be defined by opposition to the concept of a “legal title”. But, as the Chamber observed, the word “title” does not “denote documentary evidence alone”, and may be used in different senses: “[i]n fact, the concept of title may also, and more generally, comprehend both any evidence which may establish the existence of a right, and the actual source of that right”.41 The Court has consistently denied that maps alone could, in themselves, constitute a “title” stricto sensu, or be treated as definitive evidence of a frontier: [M]aps 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 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.42 40 41 42

Frontier Dispute (Burkina Faso/Mali), Judgment, i.c.j. Reports 1986, pp. 586–587, para. 63. Ibid., p. 564, para. 18. See also above, note 29. In that sense, an “effectivité” can also be a “title”, i.e. the basis on which a right rests. Ibid., p. 582, para. 54. Cf. Frontier Dispute (Burkina Faso/Niger), Judgment of 16 April 2013, i.c.j. Reports 2013, para. 68. In the latter case, the Special Agreement, pursuant to which

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Furthermore, …even where the guarantees [of accuracy and reliability] are present, maps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps. In consequence, except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of a rebuttable or juris tantum presumption such as to effect a reversal of the onus of proof.43 “Effectivités” may thus consist of a wide range of activities, acts or declarations, evidenced by reliable documents or other elements of proof, which relate to the effective administration of the territory in dispute and display the exercise of an actual public authority by the relevant colonial authorities.44 *

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Burkina Faso and Niger jointly submitted their frontier dispute to the Court, referred to an Agreement of 1987 as forming, amongst others rules of international law, the applicable law to the dispute. This Agreement specified the acts and documents of the French colonial administration which must be used to determine the delimitation line that existed when the two countries gained independence, namely the Arrêté of 31 August 1927 adopted by the Governor-General ad interim of fwa with a view to “fixing the boundaries of the colonies of Upper Volta and Niger”, as clarified by its Erratum of 5 October 1927. But the 1987 Agreement provided also for the possibility of “the Arrêté and Erratum not suffic[ing]” and established that, in that event, “the course [should] be that shown on the 1:200,000-scale map of the Institut géographique national de France, 1960 edition”. The Court thus considered that, by virtue of such Agreement, the line shown on the ign map “was always of decisive value, where the Arrêté [did] not suffice”; “under the 1987 Agreement, the frontier line drawn on the ign map must be referred to on a subsidiary basis even if it does not correspond to [the] effectivités”. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, i.c.j. Reports 1986, p. 583, para.  56; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), i.c.j. Reports 1992, p. 550, para. 316. For a thorough examination of the issues raised in practice, see L. Sanchez Rodriguez, “L’uti possidetis juris et les effectivités dans les contentieux territoriaux et frontaliers”, op. cit., note 5, pp. 149–382.

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In accordance with the celebrated dictum of the Chamber, in the Frontier Dispute (Burkina Faso/Mali), and as further illustrated in later cases, “effectivités” may play a dual role with respect to an existing “title”: either they simply “confirm the exercise of the right derived from a legal title”, or, “in cases where the legal title is not capable of showing exactly the territorial expanse to which it relates…[t]he effectivité can then play an essential role in showing how the title is interpreted in practice”.45 As regards such effectivités, the Court cannot exclude a priori the possibility that maps, research or other documents subsequent to [the dates of independence of the States concerned] 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 juris 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 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.46 Moreover, as the same Chamber of the Court noted, when Parties had on occasion sought to confirm the legal title which they claimed by relying on acts whereby their authorities allegedly exercised sovereignty over the disputed territories after the date of their independence, “[s]uch an approach should not necessarily be excluded”.47 Another Chamber had already stated, in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras: Nicaragua intervening), that it is possible to have regard…in certain instances, to documentary evidence of post-­ independence 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.48

45 See supra, note 41. 46 Frontier Dispute (Benin/Niger), Judgment, i.c.j. Reports 2005, p. 109, para. 26. 47 Ibid., p. 109, para. 27. 48 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), i.c.j. Reports 1992, p. 399, para. 62; Frontier Dispute (Benin/Niger), Judgment, i.c.j. Reports 2005, pp. 109–110, para. 27.

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In this latter case, the Chamber found that the Parties, by their own conduct, could alter the determination of the boundary resulting from the principle of uti possidetis juris: The principle of uti possidetis juris is sometimes stated in almost absolute terms, suggesting that the position at the date of independence is always determinative; in short, that no other critical date can arise. As appears from the discussion above, this cannot be so. A later critical date clearly may arise, for example, either from adjudication or from a boundary treaty. Thus, in the previous Latin American boundary arbitrations it is the award that is now determinative, even though it be based upon a view of the uti possidetis juris position. The award’s view of the uti possidetis juris position prevails and cannot now be questioned juridically, even if it could be questioned historically. So for such a boundary the date of the award has become a new and later critical date. Likewise there can be no question that the parts of the El Salvador/Honduras boundary fixed by the General Treaty of Peace of 1980 now constitute the boundary and 1980 is now the critical date. If the uti possidetis juris position can be qualified by adjudication and by treaty, the question then arises whether it can be qualified in other ways, for example, by acquiescence or recognition. There seems to be no reason in principle why these factors should not operate, where there is sufficient evidence to show that the parties have in effect clearly accepted a variation, or at least an interpretation, of the uti possidetis juris position.49 49

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), i.c.j. Reports 1992, p. 401, para. 67; emphasis added. The Chamber eventually found that, in that case, Honduras had always considered until 1972 certain sectors of the land boundary in dispute as appertaining to El Salvador, ibid., p. 408, para. 80: “the Chamber does not consider that the effect of the application of the principle of the uti possidetis juris in Spanish America was to freeze for all time the provincial boundaries which, with the advent of independence, became the frontiers between the new States. It was obviously open to those States to vary the boundaries between them by agreement; and some forms of activity, or inactivity, might amount to acquiescence in a boundary other than that of 1821. Even on the hypothesis that Honduras’s analysis of the legal effect, under Spanish colonial law, of the grant of the Citalá titulo ejidal is correct, so that from 1776 onward the provincial boundary remained to the south-west of the land comprised in that title (and followed the line E-F-G’-H-J-A), the conclusion does not follow that that is the course of the international frontier today. The situation was susceptible of modification by acquiescence in the lengthy intervening period; and the Chamber finds that the conduct of Honduras from 1881 until 1972 may be regarded as amounting to

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The Chamber further held that “the effective possession by one [of the States concerned] of [an] island could constitute an effectivité, though a post-colonial one, throwing light on the contemporary appreciation of the legal situation. Possession backed by the exercise of sovereignty may be taken as evidence confirming the uti possidetis juris title”.50 * Sometimes, despite the fact that both parties to a case had claimed to hold a “legal title” over a certain territory, by virtue of the uti possidetis principle or otherwise (for example a treaty), the Court has found that neither of them had established title to the disputed territory, and that sovereignty could only be established on the basis of effectivités.51 Such has been the case, in particular, with regard to small islands, for which neither colonial law, nor any treaty between the Parties, provided a clear and definite answer. The Court has thus acknowledged that “when the principle of the uti possidetis juris is involved, the jus referred to is not international law but the constitutional or administrative law of the pre-independence sovereign, in this case Spanish colonial law; and it is perfectly possible that that law itself gave no clear and definite answer to the appurtenance of marginal areas, or sparsely populated areas of minimal economic significance (Land, Island and Maritime Frontier

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such acquiescence in a boundary corresponding to the boundary between the Tepangüisir lands granted to Citala and those of Ocotepeque”. Ibid., p. 566, para. 347. The Chamber did not find it “necessary to decide whether such possession could be recognized even in contradiction of such title, but in the case of the islands, where the historical material of colonial times is confused and contradictory, and the accession to independence was not immediately followed by unambiguous acts of sovereignty, this is practically the only way in which the uti possidetis juris could find formal expression so as to be judicially recognized and determined”, idem. The Chamber referred, in this respect, to the decision of the Court in the Minquiers and Ecrehos case, i.c.j. Reports 1953, p. 53, where it disregarded ancient titles and concluded, after examining evidence of possession as confirmatory of title, that the sovereignty over the Ecrehos belonged to the United Kingdom by virtue of its exercise of State functions over the islets and rocks. Such an eventuality was envisaged by the Chamber in its Judgment in the Frontier Dispute (Burkina Faso/Mali); see supra, note 41.

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Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, i.c.j. Reports 1992, p. 559, para. 333)”.52 In such cases, it may be said that the “effectivités” constitute the relevant title. Indeed, as the Court once stated: “sovereign title may be inferred from the effective exercise of powers appertaining to the authority of the State over a given territory”;53 To sustain a claim of sovereignty on that basis, a number of conditions must be proven conclusively. As described by the Permanent Court of International Justice 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 (Legal Status of Eastern Greenland, Judgment, 1933, p.c.i.j., Series A/B, No. 53, pp. 45-46). An additional element established by the Permanent Court of International Justice in the Legal Status of Eastern Greenland case is “the extent to which sovereignty is also claimed by some other Power” (ibid., p. 46). The exercise of sovereign rights must also have a certain dimension proportionate to the nature of the case. In its Judgment, the Court stated: It is impossible to read the record 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 in the case of claims to sovereignty over areas in thinly populated or unsettled countries. (Ibid.) Sovereignty over minor maritime features, such as the islands in dispute between Honduras and Nicaragua, may therefore be established on the basis of a relatively modest display of State powers in terms of quality and quantity. In the Indonesia/Malaysia case, the Court indicated that “in 52

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Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012, p. 651, para. 64. See also the case concerning the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, i.c.j. Reports 2002, p. 678, para. 126; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007, p. 712, para. 172. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007, p. 712, para. 172.

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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” (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), Judgment, i.c.j. Reports 2002, p. 682, para. 134). The Court further specified: [I]t 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. (Ibid., pp. 682-683, para. 136.).54 In its Judgment in the Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court further recalled that “…acts and activities considered to be performed à titre de souverain are in particular, but not limited to, legislative acts or acts of administrative control, acts relating to the application and enforcement of criminal or civil law, acts regulating immigration, acts regulating fishing and other economic activities, naval patrols as well as search and rescue operations”.55 Several categories of effectivités have thus been taken into account, such as: public administration and legislation; regulation of economic activities; public works; law enforcement measures; naval visits and search and rescue operations; consular representation.56 The Court will also consider the reaction of the other party, and its potential recognition of the sovereignty exercised over the disputed territory,57 as well as the position taken by third States, in order to ascertain whether they have recognized that State’s sovereignty,58 or at least afford some support to the claim based upon the effectivités. Finally, it must be emphasized that not all acts or activities supporting a claim of sovereignty over a territory are admissible. As the Court recalled: 54 55

56 57 58

Ibid., pp. 712–713, paras. 172–175. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), p. 655, para. 80. The Court cites one of its earlier judgments, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, Judgment, i.c.j. Reports 2007 (ii), pp. 713–722, paras. 176–208. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 655–657, paras. 82–83. Ibid., pp. 657–659, paras. 85–90. Ibid., pp. 659–661, paras. 91–96.

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in the context of a dispute related to sovereignty over land,…the date upon which the dispute crystallized is of significance. Its significance lies in distinguishing between those acts à titre de souverain occurring prior to the date when the dispute crystallized, which should be taken into consideration for the purpose of establishing or ascertaining sovereignty, and those acts occurring after that date, ‘which are in general meaningless for that purpose, having been carried out by a State which, already having claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing those claims’ (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007 (ii), pp. 697-698, para. 117). As the Court explained in the Indonesia/Malaysia case: ‘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’ (Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/ Malaysia), Judgment, i.c.j. Reports 2002, p. 682, para. 135).59 * 2

The Dual Requirements of Legal Security and Effectiveness in the Settlement of Maritime Delimitation Disputes

A significant proportion of the cases submitted to the Court since 1946 have concerned questions related, in one way or another, to the law of the sea. From the end of the 1970s onwards, the Court’s docket has included a number of cases of maritime delimitation. The Court has made a significant contribution to the prevention of conflicts and to the development of international law in this sensitive and highly complex area, with varied and important interests at stake. The law of maritime delimitation can be viewed as one of the areas where the Court’s role has been the most successful in practice, but also one where it has faced some of the most intricate challenges for a judicial body: the rapid evolution of the law, both customary and conventional, the paucity of international legal rules, or their lack of explicit content (or “concreteness”, thus 59

Ibid., p. 652, para. 67–68.

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leaving a wide margin of discretion when applying such rules), as well as the diversity of situations and contexts in which such rules are to be applied. The Court’s Jurisdiction over Maritime Delimitation Disputes The Court’s jurisdiction over maritime delimitation disputes is governed, as elsewhere, by the fundamental principle of consent. States can accept the contentious jurisdiction of the Court in respect of such disputes in the same manner as for any other kind of dispute, namely by a special agreement or a compromissory clause, a declaration recognizing the compulsory jurisdiction of the Court under Article 36 (2), of the Statute of the Court, or by way of forum prorogatum.60 Since 1946, six cases relating (exclusively or in part) to maritime delimitations have been brought before the Court under a special agreement concluded to that end by the States parties to the dispute.61 As just recalled, cases concerning maritime delimitation disputes may also be brought before the Court by virtue of a compromissory clause. Such clauses may be included in conventions whose object relates to the pacific settlement of disputes in general, between two or more States; or in conventions, either bi62—or multilateral,63 specifically dealing with law of the sea matters and providing for the Court’s jurisdiction in cases of disputes relating to the interpretation or application of the said convention. The terms of compromissory clauses may vary from one convention to another: they may be included in the text of the convention itself or form a protocol annexed to it (and subject to its own conditions of ratification and entry into force); the jurisdiction of the Court may be compulsory or optional; the acceptance of the Court’s competence may or may not be subject to reservations, etc. The Court’s compulsory jurisdiction had been provided in an optional protocol to the four 1958 Geneva Conventions on the Law of the Sea, which only a few States had ratified, however. A more significant step towards the

60 See supra, Chapter 2. 61 North Sea Continental Shelf (Federal Republic of Germany/Denmark) and North Sea Continental Shelf (Federal Republic of Germany/Netherlands) (the proceedings in these two cases were joined, and the Court rendered a single Judgment for these two cases); Continental Shelf (Tunisia/Libyan Arab Jamahiriya); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America); Continental Shelf (Libyan Arab Jamahiriya/Malta); Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening). 62 See for example the case concerning the Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, p. 61. 63 See the provisions of the 1982 unclos, infra.

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compulsory settlement of disputes was taken during the third United Nations Conference on the Law of the Sea, where the principle of effective, compulsory methods of settling law-of-the-sea disputes was part of the package agreed between the negotiating States and incorporated in the resultant 1982 Convention on the Law of the Sea (unclos). Nonetheless, the principle of consent remains the essential pillar of the complex system of dispute settlement provided in Part xv of the Convention. Thus States are still free to choose, at any time, the dispute settlement method they wish, while at the same time the Convention provides for a comprehensive system of “compulsory procedures entailing binding decisions” (Part xv, Sec. 2). Disputes concerning the Convention’s interpretation or application may be settled either by a permanent judicial body or by an arbitral tribunal,64 where no settlement has been reached by recourse to negotiation or conciliation. Article 287, paragraph 1, of unclos provides: When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex vi; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex vii;65 (d) a special arbitral tribunal constituted in accordance with Annex viii for one or more of the categories of disputes specified therein.66 64

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Article 286 of unclos: “Subject to Section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to Section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.” This annex provides for the constitution of an arbitral tribunal of five members (unless the parties agree otherwise), to be chosen among a list, drawn up and maintained by the unsg, of arbitrators nominated by every State Party, and for its procedure. “Subject to Part xv, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping, may submit the dispute to the special arbitral procedure provided for in this Annex…” (Annex viii, Art. 1.) The Annex viii Tribunal shall consist of five members, chosen preferably from the appropriate list or lists relating to the matters in dispute, such list(s) being established and maintained by the relevant international organizations (fao, unep, the Intergovernmental Oceanographic Commission,

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Paragraphs 3 to 5 of the same Article 287 provide, respectively, that “[a] State Party which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration”, that “if the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree”, and that “[i] f the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex vii, unless the parties otherwise agree”. Arbitration appears thus as the default means of dispute settlement. Part xv, Section 3, of the Convention sets out certain limitations and exceptions to the applicability of these compulsory procedures. Article 297 specifies the disputes subject to the compulsory procedures, while Article 298 (1) provides for optional exceptions to the compulsory settlement of disputes, allowing a State Party to declare that it does not accept one or more of the compulsory procedures with respect to certain categories of dispute, namely: “disputes concerning the interpretation or application of articles 15 [territorial sea], 74 [exclusive economic zone] and 83 [continental shelf], or relating to sea boundary delimitations, or those involving historic bays or titles” (subpara. (a) (i)),67 “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction” (subpara. (b)), and “disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention” (subpara. (c)). The optional exclusion of disputes relating to sea boundary delimitations, as provided in Article 298 (1) (a) (i), reflects a rather cautious attitude of States towards the judicial settlement of such disputes.68

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and the International Maritime Organization) in respect of each of the fields of (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation, including pollution from vessels and by dumping (Id., Art. 2, para. 1). Provided that such State must accept the submission of the matter to conciliation, in accordance with Annex v of the Convention. In case the Parties do not come up subsequently with an agreement settling their dispute, the parties shall, by mutual consent, submit the question to one of the compulsory procedures entailing binding decision provided for in Part xv, Section 2. Indeed, as it will be seen infra, maritime delimitation (and related disputes) have to be solved in the first place by way of an agreement between the States concerned.

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Out of the 166 States Parties to the Convention, 2769 have accepted the jurisdiction of the Court with respect to disputes referred to in Article 287 (1) of the Convention. Of those States, 8 have availed themselves of the possibility of excluding sea boundary disputes from the Court’s jurisdiction, in accordance with Article 298 (1). To date, no case has been brought before the Court on the basis of the dispute settlement provisions of the 1982 Convention. Nine cases of maritime delimitation have, however, already been submitted to the Court on the basis of compromissory clauses contained in other treaties or conventions.70 A third way of accepting the jurisdiction of the Court for the settlement of maritime delimitation disputes consists of a declaration under Article 36 (2) of the Statute.71 To date, such declarations have been made by 72 States, a number of which contain reservations, including with respect to maritime disputes. Some of these reservations relate to disputes arising out of or concerning jurisdiction or rights claimed or exercised by the State in respect of the conservation, management or exploitation of the living resources of the sea, or in respect of the prevention or control of pollution or contamination of the marine environment in marine areas adjacent to its coast.72 These reservations may also exclude the jurisdiction of the Court with regard to disputes 69

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These States are: Australia, Austria, Belgium, Cabo-Verde, Croatia, Denmark, Ecuador, Estonia, Finland, Germany, Honduras, Hungary, Italy, Latvia, Lithuania, Mexico, Montenegro, Netherlands, Nicaragua, Norway, Oman, Portugal, Spain, Sweden, Timor-Leste, Trinidad and Tobago, and the United Kingdom of Great Britain and Northern Ireland. Aegean Sea Continental Shelf (Greece v. Turkey); Maritime Delimitation between GuineaBissau and Senegal (Guinea-Bissau v. Senegal); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain); Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras); Territorial and Maritime Dispute (Nicaragua v. Colombia); Maritime Delimitation in the Black Sea (Romania v. Ukraine); Maritime Dispute (Peru v. Chile); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia); Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua). The three cases which were also instituted on the basis of a declaration under Article 36 (2) of the Statute, are in bold. Contra, dissenting opinion of Judge Oda, Maritime Delimitation in the Area between Greenland and Jan Mayen, i.c.j. Reports 1993, pp. 110–112, paras. 75–81. See for example the declaration of Barbados. See also the reservations included in the declarations of Canada, Malta, New Zealand and the Philippines, as well as the reservation made by Poland concerning disputes with regard to environmental protection. The Court found that its jurisdiction was excluded by a reservation of this kind in the case concerning Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, i.c.j. Reports 1998, p. 432.

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concerning or relating to the territorial sea, the continental shelf, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction, including any question of maritime delimitation.73 To date, seven cases relating to maritime delimitation have been brought before the Court on the basis of declarations made under Article 36 (2) of the Statute.74

The Contribution of the icj to the Development of the Law of Maritime Delimitation From the mid-twentieth century onwards, the tendency of States to claim increasingly larger maritime areas, in order to explore and exploit the natural resources of the sea, its soil and subsoil, has triggered a growing number of disputes between States with adjacent or opposite coasts, and overlapping claims. The need for a codification of the law of the sea, which had previously been essentially composed of rules of customary international law (the content of which was subject to much controversy and dispute), proved very difficult to reconcile with the conflicting interests of States, either as coastal States, eager to extend their jurisdiction over large maritime areas which were traditionally part of the high seas, or as maritime “powers” which were prone, to the contrary, to defend the freedom of the high seas (including that of navigation and

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See the declarations of Djibouti, Honduras, India, Malta, Nigeria, the Philippines. In the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), the Court examined a similar reservation, whereby Australia excluded from its acceptance of the jurisdiction of the Court “any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”, Judgment, i.c.j. Reports 2014, pp. 242–246, paras. 30–41. The Court concluded that Japan’s objection to the Court’s jurisdiction in the case could not be upheld on the basis of such a reservation. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway); Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening); Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (together with Article xxxi of the American Treaty on Pacific Settlement, the “Pact of Bogotá”); Territorial and Maritime Dispute (Nicaragua v. Colombia) (together with Article xxxi of the American Treaty on Pacific Settlement, the “Pact of Bogotá”); Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) (together with Article xxxi of the American Treaty on Pacific Settlement, the “Pact of Bogotá”); Maritime Delimitation in the Indian Ocean (Somalia v. Kenya).

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fishing) against the “creeping” jurisdiction of coastal States. The settlement of maritime delimitation disputes by the Court was undoubtedly extremely sensitive in such a context of uncertainty. In its Judgment in the case concerning the Maritime Dispute (Peru v. Chile), the Court gave an account of the developments in the law of the sea as it existed in the 1950s, in particular concerning the establishment of maritime zones beyond the territorial sea and the delimitation of those zones: [The historic] context [of the dispute] is provided by the State practice and related studies in, and proposals coming from, the International Law Commission and reactions by States or groups of States to those proposals concerning the establishment of maritime zones beyond the territorial sea and the delimitation of those zones. By the 1950s that practice included several unilateral State declarations. Those declarations, all adopted between 1945 and 1956, may be divided into two categories. The first category is limited to claims in respect of the sea-bed and its subsoil, the continental shelf, and their resources. They include declarations made by the United States (28 September 1945), Mexico (29 October 1945), Argentina (11 October 1946), Saudi Arabia (28 May 1949), Philippines (18 June 1949), Pakistan (9 March 1950), Brazil (8 November 1950), Israel (3 August 1952), Australia (11 September 1953), India (30 August 1955), Portugal (21 March 1956) and those made in respect of several territories then under United Kingdom authority (…), as well as nine Arab States then under the protection of the United Kingdom (Abu Dhabi (10 June 1949), Ajman (20 June 1949), Bahrain (5 June 1949), Dubai (14 June 1949), Kuwait (12 June 1949), Qatar (8 June 1949), Ras al Khaimah (17 June 1949), Sharjah (16 June 1949), and Umm al Qaiwain (20 June 1949)). Other declarations, the second category, also claim the waters above the shelf or sea-bed or make claims in respect of the resources of those waters. In addition to the three claims in issue in this case, those claims include those made by the United States of America (28 September 1945), Panama (17 December 1946), Iceland (5 April 1948), Costa Rica (5 November 1949), Honduras (7 March 1950), El Salvador (7 September 1950) and Nicaragua (1 November 1950)… Some of the declarations did address the issue of establishing maritime boundaries. The first was the continental shelf declaration of the United States, which provided that, whenever the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. Those of Mexico and

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Costa Rica (like that of Chile…) stated that the particular declaration each had made did not mean that that Government sought to disregard the lawful rights of other States, based on reciprocity. The wording in the Argentinean decree accorded conditional recognition to the right of each nation to the same entitlements as it claimed. Proclamations made by the Arab States then under United Kingdom protection all provided in similar terms that their exclusive jurisdiction and control of the sea-bed and subsoil extended to boundaries to be determined more precisely, as occasion arises, on equitable or, in one case, just principles, after consultation with the neighbouring States. Those declarations were part of the background against which the International Law Commission worked in preparing its 1956 draft articles for the United Nations Conference on the Law of the Sea, held in 1958. On the basis, among other things, of the material summarized above, the report of a committee of experts, and comments by a significant range of States, the Commission proposed that, in the absence of an agreement or special circumstances, an equidistance line be used for delimitation of both the territorial sea and the continental shelf. The Commission in particular rejected, in the absence of an agreement, as a basis for the line the geographical parallel passing through the point at which the land frontier meets the coast…The Commission’s proposals were adopted by the 1958 Conference and incorporated, with drafting amendments, in the Convention on the Territorial Sea and Contiguous Zone (Art. 12) and the Convention on the Continental Shelf (Art. 6). The territorial sea was not seen by the International Law Commission, and would not have been seen at that time by most nations, as extending beyond 6 nautical miles and the continental shelf line was for the sea-bed and subsoil, extending to a 200-metre depth or beyond to the limit of exploitability, and not for the resources of the water above the shelf. The Court observes that, during the period under consideration, the proposal in respect of the rights of a State over its waters which came nearest to general international acceptance was for a 6-nautical-mile territorial sea with a further fishing zone of 6 nautical miles and some reservation of established fishing rights[75]. As the Court has noted previously, in this period the concept of an exclusive economic zone of 200 nautical 75

Such was more or less the proposal put forward by the United States and Canada during the Second un Conference on the Law of the Sea (convened in Geneva in 1960 in order to discuss the outer limit of the territorial sea as well as the fishery zone), but whose rejection brought this Conference to its end.

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miles was ‘still some long years away’ (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, p. 87, para. 70), while its general acceptance in practice and in the 1982 United Nations Convention on the Law of the Sea was about 30 years into the future.76 The variety of States’ practice, whether through unilateral statements, legislation or administrative acts, as well as the various positions taken by States in pursuing their specific interests during the Third United Nations Conference on the Law of the Sea (1973-1982), were the cause of the very long process which led to the definition and general acknowledgment of the different categories of maritime zones in international law. It took ten years to achieve the “legal order for the seas and oceans” which unclos iii was intended to establish.77 In this long process, the International Court of Justice obviously took a significant part. Thus the Court was called upon to apply rules which were in the process of formation or transformation, whose customary nature, absent conventional rules applicable, was therefore uncertain, or whose imprecise content could involve the risk of an erratic approach by the Court when fulfilling its judicial function, contrary to the need for legal security owed to States likely to present themselves before the Court. To some extent, the Court’s case law on maritime delimitation disputes reflects the evolution which the law of the sea underwent in that regard between the 1950s and the 1980s. The Court has nevertheless succeeded in clarifying the rules and principles applicable to maritime delimitations, and has been able to establish a unified and coherent approach, by adopting a single methodology aimed at ensuring both predictability and sufficient flexibility in settling maritime disputes in accordance with international law. This has essentially been the case with regard to the delimitation of the continental shelf and the exclusive economic zone (eez), as will be further illustrated below. * To date, no case before the Court has concerned exclusively the delimitation of the territorial sea or of the contiguous zone between two States with opposite

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Maritime Dispute (Peru v. Chile), Judgment, i.c.j. Reports 2014, pp. 45–47, paras. 112–116. The Court recalled that such is the object and purpose, as stipulated in its Preamble, of the unclos, see Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), p. 669, para. 126.

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or adjacent coasts.78 Yet the Court has often had to deal with questions closely related to the delimitation of the territorial sea. In the Anglo-Norwegian Fisheries case, in 1951, the subject of the dispute was not the breadth of the Norwegian territorial sea (the four-mile limit claimed by Norway having been acknowledged by the United Kingdom), or of any fishing zone. The question was whether the lines laid down by a Norwegian decree (of 1935) for the purpose of delimiting the Norwegian fisheries zone (i.e., the lines along the coast from which the breadth of the territorial sea or exclusive fishing zone may be measured), had or had not been drawn in accordance with international law. The Court rejected the principle, advanced by the United Kingdom, that the base-line should be the low-water mark, although the Court recognized that that criterion was generally adopted in the practice of States at that time. In that particular case, the Court found that such a method would not apply to the geographic realities, and the indented form of the coast. Drawn between appropriate points on this low-water mark, departing from the physical coastline to a reasonable extent, the base-line could only be determined by means of a geometric construction. The Court eventually found that the method applied by Norway, namely that of straight lines, encountered no opposition from other States, and was not to be regarded as contrary to international law.79 The Court’s Judgment was important in affirming that The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed 78

79

Questions concerning the delimitation of the territorial sea have been or may be addressed by the Court in cases where the parties have requested the Court to draw a single maritime boundary, independently of the different natures of the relevant maritime areas (territorial sea, continental shelf and eez); see Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, i.c.j. Reports 2001, pp. 91 et seq., paras. 166 et seq. As the Court pointed out, the concept of a single maritime boundary does not present comparable problems, with regard to the delimitation of territorial seas, as may be the case with regard to the delimitation of the continental shelf and the eez, “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” (ibid., p. 93, para. 174). In the proceedings introduced before the Court in February 2014 in the case concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), the Court is requested to determine the complete course of a single maritime boundary between all the maritime areas, thus including the territorial sea, appertaining respectively to Costa Rica and Nicaragua. Fisheries (United Kingdom v. Norway), Judgment, i.c.j. Reports 1951, p. 116.

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in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.80 The Judgment of the Court in the Fisheries case also played an important role in the drafting of the 1958 Convention (and the subsequent similar provisions in unclos, 1982), where the system of straight baselines would be taken over, albeit only as an exception to the low-water mark method. Further to the Court’s decision, the 1958 Convention specified the conditions allowing for the drawing of straight baselines. The Court’s jurisprudence is also of interest, indirectly, for the delimitation of the territorial sea, insofar as it has addressed the role of certain maritime features which may have an impact upon the breadth of the territorial sea. In the case between Qatar and Bahrein, the Court highlighted the customary character of the definition of a low-tide elevation, which has to be distinguished from an “island” as defined under the law of the sea, and the consequences ensuing therefrom for measuring the breadth of the territorial sea from the mainland. Thus: 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 a 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;81 80 81

Ibid., p. 132. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, i.c.j. Reports 2001, p. 97, para. 185. Art. 121, para. 2, of unclos, reads as follows: “Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory”. See also: Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 645, paras. 37–38, and 689–690, para. 176.

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Contrary to an island, which is defined as “a naturally formed area of land, surrounded by water, that is above water at high tide”,82 and according to the relevant provisions of the Convention 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 breath 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.83 The Court made some remarks concerning issues raised by low-tide elevations in the context of the delimitation of the territorial sea of two States. In the particular case of a low-tide elevation situated in the overlapping area of the territorial sea of two States, whether with opposite or with adjacent coasts, the same low-tide elevation then forms part of the coastal configuration of the two States, 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.84 The Court, recognizing that low-tide elevations cannot be equated with islands or other land territory, rejected the argument that a coastal State, on the basis 82 83

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Art. 121, para. 1, unclos. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, i.c.j. Reports 2001, p. 100, para. 201 (see also Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 692–693, para. 182). The Court continues: “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 on the Law of the Sea, paragraph 4 of Article 7).” Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, i.c.j. Reports 2001, p. 101, para. 202.

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of effectivités, should be allowed to invoke a superior title to the low-tide elevation in question in order to use the latter’s low-tide mark for the determination of the breadth of its territorial sea. The Court made it clear that a State cannot 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.85 The Court further recalled 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’ or ‘saute-mouton’ method.86 In the Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court addressed several questions relating to the entitlements generated by various maritime features, in particular the entitlement of each island to a territorial sea of its own. The Court confirmed that: a comparatively small island may give an entitlement to a considerable maritime area. Moreover, even an island which falls within the exception stated in Article 121, paragraph 3, of unclos is entitled to a territorial sea [on this latter exception, see infra]. That entitlement to a territorial sea is the same as that of any other land territory. Whatever the position might have been in the past, international law today sets the breadth of the territorial sea which the coastal State has the right to establish at 12 nautical miles. Article 3 of unclos reflects the current state of customary international law on this point…While the territorial sea of a State may be restricted, as envisaged in Article 15 of unclos, in circumstances where it overlaps with the territorial sea of another State, there is no such overlap…between the territorial sea entitlement of [one State] derived from each island and the entitlement of 85 86

Ibid., pp. 101–102, paras. 204 et seq. Ibid., p. 102, para. 207.

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[another State] to a continental shelf and exclusive economic zone. The nature of those two entitlements is different. In accordance with longestablished principles of customary international law, a coastal State possesses sovereignty over the sea-bed and water column in its territorial sea (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, i.c.j. Reports 2001, p. 93, para. 174). By contrast, coastal States enjoy specific rights, rather than sovereignty, with respect to the continental shelf and exclusive economic zone.87 The Court then recalled that it “ha[d] never restricted the right of a State to establish a territorial sea of 12 nautical miles around an island on the basis of an overlap with the continental shelf and exclusive economic zone entitlements of another State”:88 Since the entitlement to a 12-nautical-mile territorial sea became established in international law, those judgments and awards in which small islands have been accorded a territorial sea of less than 12 nautical miles have invariably involved either an overlap between the territorial sea entitlements of States (e.g., the treatment accorded by the Court to the island of Qit’at Jaradah in Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, i.c.j. Reports 2001, p. 109, para. 219) or the presence of an historic or agreed boundary (e.g., the treatment of the island of Alcatraz by the Court of Arbitration in the Guinea-Guinea Bissau Maritime Delimitation Case (1985), riaa, Vol. xix, p. 190 (French); ilr, Vol. 77, p. 635 (English Translation)).89 In spite of the fact (or for that very reason) that “international law does not prescribe any minimum size which a feature must possess in order to be

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Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 689–690, paras. 176–177. Ibid., para. 178. See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007 (ii), p. 751, para. 302. The Court pointed out that other tribunals had adopted the same approach. For example, the Arbitral Tribunal in the Dubai-Sharjah Border Arbitration (1981) (International Law Reports (ilr), Vol. 91, p. 543), and itlos, Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment of 14 March 2012, I.T.L.O.S. Reports 2012, pp. 55–56, para. 169. Ibid., para. 179.

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considered an island”,90 and “that it inevitably follows that a comparatively small island may give an entitlement to a considerable area”,91 paragraph 3 of Article 121 of the 1982 Convention on the Law of the Sea provides that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. This provision raises a number of complex issues, and its interpretation remains the subject of considerable controversy.92 The Court has never been called upon to rule on the customary nature of this provision as such, or to apply it. Thus, in cases where it might have been questionable whether a maritime feature fell within paragraph 2 or paragraph 3 of Article 121 of 1982 unclos, and whether or not it could accordingly have generated an entitlement to a continental shelf and an eez, it was clear that other islands, or mainland coasts, indisputably generated such entitlement in the same area. It was therefore unnecessary for the Court to determine the precise status of smaller islands, or to decide whether they were only “rocks”, which do not generate any entitlement to a continental shelf or eez.93 * 90 91

Ibid., para. 37. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 689–690, para. 176. 92 See, inter alia, R. Kolb, “L’interprétation de l’article 121, paragraphe 3, de la convention de Montego Bay sur le droit de la mer: les ‘rochers qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre…’”, Annuaire français de droit international, 1994, Vol. 40, pp. 876–909. 93 See Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 691–692, para. 180: “The Court recalls that, faced with a similar situation in respect of Serpents’ Island in the Maritime Delimitation in the Black Sea case, it considered it unnecessary to determine whether that island fell within paragraph 2 or paragraph 3 of Article 121 of unclos (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, pp. 122–123, para. 187). In the present case, the Court similarly concludes that it is not necessary to determine the precise status of the smaller islands, since any entitlement to maritime spaces which they might generate within the relevant area (outside the territorial sea) would entirely overlap with the entitlement to a continental shelf and exclusive economic zone generated by the islands of San Andrés, Providencia and Santa Catalina”. While both Romania and Ukraine were parties to unclos, such was not the case of Colombia in the Territorial and Maritime Dispute. In the latter case, the Court seems to have implicitly acknowledged that the principle contained in Article 121 (3) of unclos is now part of customary international law. For a discussion on the customary nature of this provision, see Y. Tanaka, The International Law of the Sea, Cambridge University Press, 2012, pp. 67–68.

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Turning now to the question of the delimitation of the continental shelf and exclusive economic zone of States with opposite or adjacent coasts, it is worth recalling, first, the basic principles governing this matter, as they progressively emerged in the last third of the twentieth century, and as they were partly defined, or clarified, and interpreted by the Court. The leading case regarding the delimitation of the continental shelf, remains that between the Netherlands and Denmark on the one hand, and the Federal Republic of Germany on the other, regarding the delimitation as between these adjacent States of the areas of the North Sea continental shelf appertaining to each of them (cases concerning the North Sea Continental Shelf 94). The Parties had asked the Court to state the principles and rules of international law applicable, and had undertook to carry out the delimitations on that basis later on. In its Judgment, delivered on 20 February 1969, the Court made it clear that there was a difference between delimitation and apportionment of the areas concerned. The process of delimitation merely involved the determination of the limits of an area already, in principle, appertaining to the coastal State, not the determination de novo of such area.95 The Court thus emphasized that: the most fundamental of all the rules of law relating to the continental shelf [is] enshrined in Article 2 of the 1958 Geneva Convention, though quite independent of it,—namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right…The right does not depend on being exercised. To echo the language of the Geneva Convention, it is ‘exclusive’ in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent.96

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North Sea Continental Shelf, Judgment, i.c.j. Reports 1969, p. 3. Ibid., p. 22, para. 18. The Court added: “Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical”. Ibid., para. 19.

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Given the fact that the Federal Republic of Germany had not ratified the 1958 Geneva Convention on the Continental Shelf, and was therefore not, as such, legally bound by the provisions of its Article 6, which provided for the application of the principle of equidistance-special circumstances, the Court had to ascertain the actual rule governing the matter under general international law.97 The Court came to the conclusion that the 1958 Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle, that its subsequent effect had not been constitutive of such a rule, and that State practice up to 1969 had equally been insufficient for the purpose.98 The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles in such a way as to leave to each Party those areas of the continental shelf which constituted the natural prolongation of its land territory under the sea, and it indicated certain factors to be taken into consideration for that purpose. The Court insisted that the rules governing the matter of delimitation, although based on very general concepts of justice and good faith, were: actual rules of law…, that is to say rules binding upon States for all delimitations; in short, it [was] not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles, in accordance with the 97

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The Court did not accept the view advanced by The Netherlands and Denmark that, independently of the 1958 Geneva Convention, the notion of equidistance was an inescapable accompaniment of basic continental shelf doctrine. In particular, the Court found that equidistance clearly could not be identified with the notion of natural prolongation (and proximity), since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one State to be attributed to another. The Court did not find in the genesis of the equidistance method of delimitation any indication in support of it being inherent in the basic concept of continental shelf. It recalled that, while the Truman declaration issued by the Government of the United Sates on 28 September 1945, which constituted the starting point of the law on the subject, enunciated that delimitation should be determined by mutual agreement and in accordance with equitable principles, the 1958 Conference adopted the equidistance principle, on the recommendation of a committee of experts, essentially as a matter of practical convenience and cartography, and not as a matter of legal theory. Moreover, the Court noted, the article adopted in 1958 had given priority to delimitation by agreement and had contained an exception in favour of “special circumstances”. Ibid., pp. 28–37, paras. 37–59. Ibid., pp. 38–46, paras. 60–82.

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ideas which have always underlain the development of the legal régime of the continental shelf in this field.99 There was no question of the Court’s decision being ex aequo et bono.100 The Court’s Judgment in the North Sea Continental Shelf cases put particular emphasis on the fact that the method of equidistance was neither a mandatory rule under general international law, nor the basic principle to be applied in order to achieve an equitable result. The Court stated: The international law of continental shelf delimitation does not involve any imperative rule and permits resort to various principles or methods, as may be appropriate, or a combination of them, provided that, by the application of equitable principles, a reasonable result is arrived at.101 Moreover, continued the Court: …in fact there [was] no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.102 In subsequent decisions the Court emphasized the particular attention that the above-mentioned judgment deserved, describing it as “the judicial decision which has made the greatest contribution to the formation of the customary

99 Ibid., pp. 46–47, para. 85. 100 Ibid., p. 48, para. 88. The Court further stated that “when mention is made of a court dispensing justice or declaring the law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules, and in this field it is precisely a rule of law that calls for the application of equitable principles”; idem. 101 Ibid., p. 49, para. 90. 102 Ibid., p. 50, para. 93. Among the factors that are to be taken into account in the course of negotiations, the Court included: the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; the physical and geological structure and natural resources of the continental shelf involved; the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region.

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law in this field”.103 Indeed, the Judgment in the North Sea Continental Shelf cases, as well as the following decisions of the Court, exerted a perceptible influence on the drafting of the relevant provisions of the 1982 unclos; according to the latter Convention, “[t]he delimitation of [the exclusive economic zone] [the continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”.104 In the Continental Shelf case between Tunisia and the Libyan Arab Jamahiriya,105 which was pending before the Court at a time when the Third Conference on the Law of the Sea (unclos iii) was ongoing, the Court delivered its judgment a few months before the adoption of the resultant 1982 Convention. The Court was requested to determine the principles and rules of international law applicable to the delimitation of the areas of continental shelf appertaining respectively to Tunisia and Libya. The Court was further required, in rendering its decision, to take account of three different factors: equitable principles; the relevant circumstances which characterize the area; and the new accepted trends in unclos iii. Once again, the Court was not called upon to draw the actual delimitation line itself. The Court concluded that the delimitation would have to divide a common continental shelf (the natural prolongation of each of the two States could not lead to a determination on the basis of physical criteria, the Court having found that there was just one continental shelf) and that the delimitation had to be effected by agreement in accordance with “equitable principles”, and taking account of all relevant circumstances, in conformity with the decision rendered in the North Sea Continental Shelf cases. The Court noted that, in the new text of the official Draft Convention (which was eventually to become Article 83, paragraph 1, of the 1982 Convention), “any indication of a specific criterion which could give guidance to the interested States in their effort to achieve an equitable solution ha[d] been excluded. Emphasis [had been] placed on the equitable solution which ha[d] to be achieved”.106 Further, the Court stated that “the principles and rules applicable to the delimitation of the continental shelf areas [were] those which are appropriate to bring about an equitable

103 Delimitation of the Maritime Frontier in the Region of the Gulf of Maine (Canada/United States), Judgment, i.c.j. Reports 1984, p. 293, para. 91. 104 Paragraph 1 of Articles 73 and 84 of unclos, respectively. 105 Continental Shelf (Tunisia/Libya), Judgment, i.c.j. Reports 1982, p. 18. 106 Ibid., p. 49, para. 50.

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result”.107 Moreover, while declaring that the equidistance method might not lead to an equitable result, the Court confirmed that the said method did not have a customary character.108 The Court emphasized, in the Tunisia/Libya case, that equitable principles were of “primordial importance in the delimitation of the continental shelf”; the Court also took account of the “relevant circumstances which characterize the area”, not merely because they were mentioned in the Special Agreement, but also because “what is reasonable and equitable in any given case must depend on its particular circumstances”.109 Among these (potential) particular circumstances, the Court envisaged the area in dispute between the Parties, the coast of each Party being a decisive factor for that matter, certain geomorphological configurations of the seabed, the presence of islands, the undisputed land frontier between the Parties established by treaty (in the absence of maritime boundaries formally agreed upon between them), historic rights

107 Idem. 108 Ibid., pp. 78–79, paras. 109–110. The Court recalled what it said about this method in the North Sea continental shelf cases, stating: “The subsequent practice of States, as is apparent from treaties on continental shelf boundaries, shows that the equidistance method has been employed in a number of cases. But it also shows that States may deviate from an equidistance line, and have made use of other criteria for the delimitation, whenever they found this a better way to arrive at an agreement. One solution may be a combination of an equidistance line in some parts of the area with a line of some other kind in other parts, as dictated by the relevant circumstances. Examples of this kind are provided by the 1977 arbitration on the Delimitation of the Continental Shelf between France and the United Kingdom, and by the Convention between France and Spain on the Delimitation of the Continental Shelves of the two States in the Bay of Biscay of 29 January 1974. Treaty practice, as well as the history of Article 83 of the draft convention on the Law of the Sea, leads to the conclusion that equidistance may be applied if it leads to an equitable solution; if not, other methods should be employed”. (Ibid., p. 79, para. 109.) The Court did not consider that it was in this case “required, as a first step, to examine the effects of a delimitation by application of the equidistance method, and to reject that method in favour of some other only if it consider[ed] the results of an equidistance line to be inequitable. A finding by the Court in favour of a delimitation by an equidistance line could only be based on considerations derived from an evaluation and balancing up of all relevant circumstances, since equidistance [was] not, in the view of the Court, either a mandatory legal principle, or a method having some privileged status in relation to other methods.” (Ibid., p. 70, para. 110.) 109 Ibid., p. 60, para. 72.

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deriving from long-established fishing activities,110 and the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to the coastal State and the length of its coasts. The Court further explained that any examination of methods to produce an equitable solution “must take as a starting-point the particular geographical situation”, and found that the fact that it had defined a single area in dispute did not imply that the Court consider[ed] it to be an area featuring such geographical homogeneity as to justify the application of a single method of delimitation throughout its extent. On the contrary, in the view of the Court, the proper appreciation and taking into account of the ‘relevant circumstances which characterize the area’ call[ed] for the area close to the coasts of the Parties to be treated differently from the areas further offshore. The Court therefore [dealt] with the area as divided into two sectors. It must, however, be emphasized that such difference of treatment [was] ultimately dictated by the primordial requirement of achieving an overall equitable result.111 In the Gulf of Maine case,112 the Chamber attempted to reformulate the basic principles, as recognized by the Parties, prescribed under general international law for purposes of every maritime delimitation between neighbouring States: (1) No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence. (2) In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result.113 110 The Court was however of the view that economic considerations cannot be taken into account for the delimitation (ibid., p. 77, para. 107). 111 Ibid., p. 82, para. 114. 112 Delimitation of the Maritime Frontier in the Region of the Gulf of Maine (Canada/United States), Judgment, i.c.j. Reports 1984, p. 246, para. 91. 113 Ibid., pp. 299–300, para. 112.

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The Chamber, however, found that: general customary international law is not the proper place in which to seek rules specifically prescribing the application of any particular equitable criteria, or the use of any particular practical methods, for a delimitation of the kind requested in the [particular] case. [C]ustomary international law merely contains a general requirement of the application of equitable criteria and the utilization of practical methods capable of implementing them. It is therefore special international law that must be looked to, in order to ascertain whether that law, as…in force between the Parties to this case, does or does not include some rule specifically requiring the Parties, and consequently the Chamber, to apply certain criteria or certain specific practical methods to the delimitation that is requested.114 In that case, where both the United States and Canada were parties to the 1958 Continental Shelf Convention, the Court took the view that “if a question as to the delimitation of the continental shelf only had arisen between the two States, there would [have been] no doubt as to the mandatory application of the method prescribed in Article 6 of the Convention, always subject, of course, to the condition that recourse is to be had to another method or combination of methods where special circumstances so require”.115 However, since the purpose of the proceedings was not to obtain a delimitation of the continental shelf alone, but to draw a single delimitation line for both the continental shelf and the superjacent fishery zone, the Chamber did not accept Canada’s argument that the method contemplated by Article 6 of the 1958 Convention should apply. The Chamber rejected the argument that, for the delimitation of an exclusive maritime fishery zone, the equidistance method was to be used, and that the “combined equidistance-special circumstances rule” had been transformed into a rule of general international law, whereas there was no trace in international customary law of such a transformation having occurred.116 Given the lack of applicable (binding) rules regarding certain criteria and methods of delimitation, either as a matter of treaty law or custom, the Chamber felt that it had to take into consideration “the criteria that it [would] regar[d] as the most equitable for the task to be performed in

114 Ibid., p. 300, para. 114. 115 Ibid., p. 301, para. 118. 116 Ibid., p. 302, para. 122.

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the [particular] case, and the method or combination of practical methods whose application [would] best permit their concrete implementation”.117 This case clarified two central issues in the law of maritime delimitations. First, the coexistence of rules of customary international law with treaty rules, as well as the existence of differences between them. Thus the rules concerning the delimitation of the continental shelf derived from two régimes: on the one hand, Article 6 of the 1958 Geneva Convention on the Continental Shelf and the equidistance/special-circumstances-rule and, on the other hand, customary law, based on equitable principles and equitable result. While Articles 73 and 84 of the 1982 Convention “crystallized” the customary rule, derived from the case law of the Court and State practice, which was applicable to the delimitation of both the continental shelf and the eez, the 1958 Geneva Convention on the Continental Shelf remained applicable as a matter of treaty law between States which had not ratified the 1982 Convention (as well as between 117 Ibid., p. 312, para. 156. For the different criteria identified by the Court, see ibid., pp. 312–313, para. 157. The Court stressed, however, that it would not be useful to undertake a more or less complete enumeration in the abstract of the criteria theoretically conceivable, an essential fact to bear in mind being that “the criteria in question are not themselves rules of law and therefore mandatory in the different situations, but “equitable”, or even “reasonable”, criteria, and that what international law requires is that recourse be had in each case to the criterion, or the balance of different criteria, appearing to be most appropriate to the concrete situation”, ibid., p. 313, para. 158. The Chamber repeated the same observation with reference to the “practical methods” it may apply, the essential consideration being that “none of the potential methods has intrinsic merits which would make it preferable to another in the abstract”, ibid., p. 315, para. 162. In the end, after a lengthy examination of the so-called “equitable criteria” and “practical methods”, the Chamber felt bound to turn to criteria more especially derived from geography, thus favouring the criterion whereby one should aim at an equal division of areas where the maritime projections of the coasts of the States between which delimitation is to be effected converge and overlap. However, some corrections had to be made to certain effects of applying that criterion that might be unreasonable, so that the concurrent use of auxiliary criteria appeared indispensable. As regards the practical methods to be used for giving effect to the criteria indicated, the Chamber considered that, like the criteria themselves, they must be basically founded upon geography and be suitable for the delimitation of the sea-bed and subsoil as to that of the superjacent waters and their living resources. Having drawn the delimitation line requested by the Parties, the final task of the Court was to verify whether the result obtained could be considered as intrinsically equitable in the light of all the circumstances. The Court excluded, in the course of this verification, the respective scale of activities in the domain of fishing or petroleum exploitation as an equitable criterion to be applied in determining the delimitation line unless, unexpectedly, the overall result would appear radically inequitable as entailing disastrous repercussions on the subsistence and economic development of the populations concerned.

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those who had ratified it, until the 1982 Convention could enter into force, in 1994). Furthermore, as shown in the Gulf of Maine case, the delimitation of the continental shelf and of the eez was not necessarily to be drawn as a single line, and the relevant principles applicable to each of these maritime zones might differ, in accordance with their different nature and purpose. Secondly, as evidenced again in the Gulf of Maine case, the sole application of “equitable principles” by the Court (or other third-party) might appear insufficient to provide predictable criteria or methods for drawing the appropriate delimitation line (leaving aside the question of whether such criteria and methods were of a legally binding nature). Despite the insistence placed by the Court’s jurisprudence on the fact that the Court applies “equity” according to the rule of law, some voices expressed their concern that this might give courts unfettered discretion. The Court’s Judgment in a further case, between Libya and Malta, reflected the need that the application of equity in delimitation cases “should display consistency and a degree of predictability”.118 As the Court observed: “[t]he normative character of equitable principles applied as a part of general international law is important because these principles govern not only delimitation by adjudication or arbitration, but also, and indeed primarily, the duty of Parties to seek first a delimitation by agreement, which is also to seek an equitable result”.119 The Libya/Malta case represented a turning point in the Court’s case law,120 in that to some extent it “rehabilitated” the equidistance method. The Court did indeed refer to the application of equitable principles—neither the 1958 Convention on the Continental Shelf, to which only Malta was party, nor the 1982 unclos, which both Parties had signed but which was not yet entered into force, was applicable as treaty law121 —, and to the task of appreciation of the weight to be accorded to the relevant circumstances in any particular case of delimitation.122 But at the same time it stated that “[i]n applying the equitable principles…and in the light of the relevant circumstances, [it] intend[ed] to proceed by stages; thus it [would] first make a provisional delimitation by 118 Continental Shelf (Libyan Arab Jamahiriya/Malta), i.c.j. Reports 1985, p. 39, para. 45. See also, Delimitation of the Maritime Frontier in the Region of the Gulf of Maine (Canada/United States), i.c.j. Reports 1993, p. 64, para. 58. 119 Continental Shelf (Libyan Arab Jamahiriya/Malta), i.c.j. Reports 1985, p. 39, para. 46. 120 M. Bedjaoui, “L’‘énigme’ des ‘principes équitables’ dans le droit de la délimitation maritime”, Revista Española de Derecho Internacional, Vol. xlii, 1990, p. 369. 121 Continental Shelf (Libyan Arab Jamahiriya/Malta), i.c.j. Reports 1985, p. 29, para. 26. 122 Ibid., p. 40, para. 48 et s.

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using a criterion and a method both of which [were] clearly destined to play an importance in producing the final result; it [would] then examine this provisional solution in the light of the requirements derived from other criteria, which [might] call for a correction of this initial result”.123 While refraining from holding the use of equidistance to be mandatory,124 and at the same time indicating that the equitable nature of the equidistance method was particularly apparent in cases, such as that between Libya and Malta, where the delimitation was between States with opposite coasts,125 the Court nonetheless laid down clear rules for addressing the matter: first, draw a provisional median (or equidistant) line, then adjust that line in view of the relevant circumstances of the area, in particular the considerable disparity between the lengths of the coasts of the Parties.126 The Court was further of the view that the delimitation line to be drawn should meet the requirements of the test of proportionality between the areas of shelf attributed to each Party in view of the considerable disparity between the lengths of the coasts of the Parties in this case and the distance between those coasts.127 The case concerning the Maritime Delimitation in the Region between Greenland and Jan Mayen (Denmark v. Norway) confirmed this approach, furthering the quest for a coherent and relatively uniform law of maritime delimitation.128 Since the parties in this case had not agreed to request the 123 Ibid., p. 46, para. 60. 124 Ibid., p. 38, para. 44; see also pp. 47, para. 63 and 56, para. 77 (“The fact that the Court has found that, in the circumstances of the present case, the drawing of a median line constitutes an appropriate first step in the delimitation process, should not be understood as implying that an equidistance line will be an appropriate beginning in all cases, or even in all cases of delimitation between opposite States.”). 125 Ibid., p. 47, para. 62. 126 It follows from the case law of the Court that the difference in the length of the coasts of the parties amounts to one of the relevant circumstances which are the most frequently invoked and taken into account, see infra note 148. 127 Continental Shelf (Libyan Arab Jamahiriya/Malta), i.c.j. Reports 1985, pp. 53–55, paras. 74–75. The Court found that it was possible for it to make a broad assessment of the equitableness of the result, without seeking to define the equities in arithmetical terms. In this case, the Court came to the conclusion that there was “no evident disproportion in the areas of shelf attributed to each of the Parties respectively such that it could be said that the requirements of the test of proportionality as an aspect of equity were not satisfied”, ibid, p. 55, para. 75. 128 The Court emphasized that “[a] court called upon to give a judgment declaratory of the delimitation of a maritime boundary and a fortiori a court called upon to effect a delimitation, will therefore have to determine ‘the relative weight to be accorded to different considerations’ in each case; to

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Court to draw a single maritime boundary for both the continental shelf and the fishery zone, the Court had to examine separately the two strands of the applicable law: first, the effect of Article 6 of the 1958 Convention (to which both Denmark and Norway were parties), which was applicable to delimitation of the continental shelf boundary, and then the effect of customary law, which governed the fishery zone (i.e., the law governing delimitation of the eez). For both delimitations, the Court brought together the different applicable régimes (treaty law and customary international law). The Court thus stated: The fact that it is the 1958 Convention which applies to the continental shelf delimitation in this case does not mean that Article 6 thereof can be interpreted and applied either without reference to customary law on the subject, or wholly independently of the fact that a fishery zone boundary is also in question in these waters. The Anglo-French Court of Arbitration in 1977 placed Article 6 of the 1958 Convention in the perspective of customary law in the much-quoted passage of its Decision, that: ‘the combined “equidistance-special circumstances rule”, in effect, gives particular expression to a general nom that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles’ (United Nations, Reports of International Arbitral Awards (riaa), Vol. xviii, p. 45, para. 70). If the equidistance-special circumstances rule of the 1958 Convention is, in the light of this 1977 Decision, to be regarded as expressing a general norm based on equitable principles, it must be difficult to find any material difference—at any rate in regard to delimitation between opposite coasts—between the effect of Article 6 and the effect of the customary rule which also requires a delimitation based on equitable principles.129 Although there could be no question of applying the 1982 Convention (as long as both States had not ratified it and it was not in force), the Court further observed that

this end, it will consult not only ‘the circumstances of the case’ but also previous decided cases and the practice of States. In this respect the Court recalls the need, referred to in the Libya/Malta case, for ‘consistency and a degree of predictability’ (i.c.j. Reports 1985, p. 39, para. 45).” (Maritime Delimitation in the Region between Greenland and Jan Mayen (Denmark v. Norway), Judgment, i.c.j. Reports 1993, pp. 63–64, para. 58.). 129 i.c.j. Reports 1993, p. 58, para. 46.

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Article 74, paragraph 1, and Article 83, paragraph 1, of that Convention provide for the delimitation of the continental shelf and the exclusive economic zone between States with opposite or adjacent coasts to be effected ‘by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’. That statement of an ‘equitable solution’ as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of continental shelf and of exclusive economic zones.130 Turning to the delimitation of the continental shelf, the Court found it appropriate, both on the basis of Article 6 of the 1958 Convention and on the basis of customary international law, to begin by drawing a median line as a provisional line and then to consider whether “special circumstances” required any adjustment or shifting of that line. After subsequent examination of the relevant precedents with regard to the delimitation of the fishery zones, it appeared to the Court that, in this case too, it was proper to begin the process of delimitation by drawing a provisional median line.131 The Court acknowledged that, in fact, “the tendency of customary law, like the terms of Article 6, ha[d] been to postulate the median [equidistance] line as leading prima facie to an equitable result”.132 The Court added that the “relevant circumstances”, as this concept had been developed under general international law, were similar to the “special circumstances”, envisaged in the 1958 Convention. It 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 necessary to be taken into account in the delimitation process.133 The tendency towards assimilation between the different régimes applicable to the delimitation of the continental shelves and eez was pursued in the subsequent case law of the Court. The Court went even further in the case 130 131 132 133

Ibid., p. 59, para. 48. Ibid., p. 62, para. 53. Ibid., para. 56. Ibid., para. 55.

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concerning the Maritime Delimitation and Territorial Questions between Qatar and Bahrain. The parties had requested the Court to draw a single delimitation line between their respective zones. They identified a southern area, in which the Court had to delimit the territorial seas of the parties, since the distance between the coasts did not exceed 24 nautical miles, and a northern area, in which it was asked to delimit the continental shelf and exclusive economic zone of both parties. The Court applied the equidistance/special-circumstances-rule to delimit the territorial seas of Qatar and Bahrain. It noted that this rule, as stated in Article 15 of the 1982 Convention, had to be seen as having a customary character. The most logical method consisted of drawing a provisional equidistance line and then adjusting it in light of any relevant circumstances. The Court decided, in conformity with its previous case law, to apply that method also to the delimitation of the continental shelf and the exclusive economic zone of the parties. Concerning that aspect, it stated: 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.134 In the case concerning the Territorial and Maritime Boundary between Cameroon and Nigeria, the Court also noted that the equitable-principles/ relevant-­circumstances-rule was “very similar” to the equidistance/special-­ circumstances-rule applicable in delimitation of the territorial sea.135 The case law of the Court has evolved towards harmonisation of the law on maritime delimitation. “Concerning the delimitation of adjacent136 or opposing137 coasts, there is now barely any difference between ‘special’ 134 Maritime Delimitation and Territorial Questions between Qatar et Bahrain (Qatar v. Bahrain), Judgment, i.c.j. Reports 2001, p. 111, para. 231. 135 Territorial and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea (intervening)), Judgment, i.c.j. Reports 2002, p. 441, para. 288. 136 Cf. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, i.c.j. Reports 2001, p. 40; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, i.c.j. Reports 2002, p. 303. 137 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, i.c.j. Reports 1993, p. 38.

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circumstances and those characterized as ‘relevant’. Similarly, the distinction between ‘equidistance’ and ‘equitable principles’ has virtually disappeared”.138 The essential goal is to reach an equitable result through a consistent and predictable methodology. The increasing requests from States for a single line of delimitation between several maritime zones has led the Court to unify the régime of maritime delimitation. The Judgment delivered by the Court in the case concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)139 appears to depart from the line of decisions adopted since 1985. In fact, the Court found itself in an exceptional situation, where it faced special circumstances (as provided for in Article 15 unclos concerning delimitation of the territorial sea), making it impossible to apply the equidistance principle. In view of the geographical configuration of the coast, as well as of the geomorphological features of the area where the endpoint of the land boundary was located, the Court constructed a bisector line, further adjusted, seawards, to take into account the territorial seas around the Honduran and Nicaraguan islands in the area.140 The Court nevertheless recalled that “equidistance remains the general rule”.141 In addition to the progressive clarification of the law applicable to maritime delimitations effected by the Court over the last 30 years, the most recent case law has displaced most of the concerns once expressed about the relative unpredictability of the methodology resorted to by the Court in applying the equitable principles in each case. The unanimous decision rendered in the Maritime Delimitation in the Black Sea (Romania v. Ukraine) in 2009 has highlighted the Court’s approach to delimitation.142 In short, drawing on its previous case law, the Court indicated that three defined steps must be contemplated when it is called upon to delimit the continental shelf or eez, or when it must determine a single maritime boundary. 138 Queneudec, J.-P., “Les principes dégagés par le juge et le rôle des circonstances pertinentes en matière de délimitation maritime”, in Le processus de délimitation maritime. Etude d’un cas fictif, Colloque international, Monaco, 27–29 March 2003, Institut du droit économique de la mer, Pedone, Paris, 2004, pp. 279–285, spec. p. 283. [Translation]. 139 Judgment, i.c.j. Reports 2007, p. 659. 140 Ibid., p. 751, paras. 302–303. 141 Ibid., p. 745, para. 281. 142 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, p. 61. Cf. Continental Shelf (Libyan Arab Jamahiriya/Malta)i.c.j. Reports 1985, p. 46, para. 60, and Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), p. 695, para. 190.

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But before engaging in delimitation stricto sensu, the Court must determine “what are the relevant coasts of the Parties, namely, those coasts the projections of which overlap, because the task of delimitation consists in resolving the overlapping claims by drawing a line of separation between the maritime areas concerned”.143 As the Court recalled in the Territorial and Maritime Dispute (Nicaragua v. Colombia): The role of relevant coasts can have two different though closely related legal aspects in relation to the delimitation of the continental shelf and the exclusive economic zone. First, it is necessary to identify the relevant coasts in order to determine what constitutes in the specific context of a case the overlapping claims to these zones. Second, the relevant coasts need to be ascertained in order to check, in the third and final stage of the delimitation process, whether any disproportionality exists in the ratios of the coastal length of each State and the maritime areas falling either side of the delimitation line. (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, p. 89, para. 78.)144 The Court also has to determine the relevant area. Thus, in Nicaragua v. Colombia, again quoting the Black Sea case, the Court further observed that the legal concept of the ‘relevant area’ has to be taken into account as part of the methodology of maritime delimitation…the relevant area may include certain maritime spaces and exclude others…In addition, the relevant area is pertinent when the Court comes to verify whether the line which it has drawn produces a result which is disproportionate.145 The Court considers it therefore of primary importance to calculate, but only approximately, “that part of the maritime space in which the potential entitlements of the parties overlap”.146 Once the relevant coasts and the relevant area have been determined, the Court will, first, establish a provisional delimitation line, using methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place. So far as delimitation of maritime areas between adjacent coasts is concerned, an equidistance line will be drawn, 143 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), p. 674, para. 141. 144 Ibid., pp. 674–675, para. 141. 145 Ibid., pp. 682–683, paras. 157–158. 146 Ibid., p. 683, para. 159.

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unless there are compelling reasons that make this unfeasible in the particular case at hand.147 When the coasts are opposite, the provisional delimitation line will consist of a median line between the two coasts. No legal consequences flow from the use of the terms “median line” and “equidistance line” since the method of delimitation is the same for both. Equidistance and median lines are to be constructed from the most appropriate points on the relevant coasts of the States concerned, with particular attention being paid to those protuberant coastal points situated nearest to the area to the delimited. The Court may, when constructing a single purpose delimitation line, deviate from the base points selected by the parties for their territorial seas. When construction of a provisional equidistance line between adjacent States is called for, the Court will have in mind considerations relating to both parties’ coastlines when choosing its own base points for this purpose. The line thus adopted is heavily dependent on the physical geography and the most seaward points of the two coasts. It is equidistant in that each of its points is located at an equal distance from the corresponding base points of these coasts. As already mentioned, the course of the final line should result in an equitable solution. Therefore, the Court will at the next, second stage, consider whether there are circumstances calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result.148 The 147 See Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007, p. 745, para. 281. 148 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, i.c.j. Reports 2002, p. 441, para. 288. For various examples of circumstances examined, see Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, pp. 112 et seq. They included, in that case: the disproportion between the lengths of the parties’ coasts, the enclosed nature of the Black Sea and other delimitations already effected in the region; the presence of Serpent’s island; the conduct of the parties (oil and gas concessions, fishing activities, including the question of equitable access to natural resources, and naval patrols), any cutting-off effect, as well as security considerations of the parties. See also Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), pp. 700 et seq. As already indicated (see above, note 126), the disparity between the lengths of the coasts is frequently considered as a (potential) relevant circumstance. See in particular: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, i.c.j. Reports 1984, p. 336, paras. 221–222; Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, p. 52, para. 73; Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, i.c.j. Reports 1993, pp. 68–69, para. 68; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, i.c.j. Reports 2002, p. 446,

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Court has also made it clear that when the line to be drawn covers several zones of coincident jurisdictions, “the so-called equitable principles/relevant circumstances method may usefully be applied, as in these maritime zones this method is also suited to achieving an equitable result”.149 Finally, and at a third stage, the Court will verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line. This is not to suggest that these respective areas should be proportionate to coastal length. As the Court also stated: “the sharing out of the area is…the consequence of the delimitation, not vice-versa”.150 The proportion may be calculated approximately, given that the purpose of this final stage is to make sure there is no significant disproportionality.151 In the Black Sea case, the Court thus found (without having felt necessary to adjust the provisional median line given the absence of relevant circumstances to that effect in that case) that there was no such disproportionality, since the ratio of the respective coastal lengths for Romania and Ukraine was approximately 1:2.8 and the ratio of the relevant area delimited between Romania and Ukraine was approximately 1:2.1.152 This method was used again recently in the Territorial and Maritime Dispute (Nicaragua v. Colombia), decided on 19 November 2012.153 Regarding the third stage, the Court made the following observations:

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para.; Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012 (ii), p. 702, paras. 209–210. The existence of islands, features and rocks in the zone to be delimited is equally often considered as a relevant circumstance (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, i.c.j. Reports 2002, p. 446, para. 299). However, the icj has sought, in order to reach an equitable result, to limit the exaggerated effect of small islands (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, p. 48, para. 64; Maritime Delimitation and Territorial Questions between Qatar et Bahrain (Qatar v. Bahrain), ibid., p. 109, para. 219). Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment, i.c.j. Reports 2007, p. 741, para. 271. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), Judgment, i.c.j. Reports 1993, p. 67, para. 64. Maritime Delimitation in the Black Sea, Judgment, i.c.j. Reports 2009, p. 130, para. 214. Ibid., para. 215. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012, p. 624.

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In carrying out this third stage, the Court notes that it is not applying a principle of strict proportionality. Maritime delimitation is not designed to produce a correlation between the lengths of the Parties’ relevant coasts and their respective shares of the relevant area. As the Court observed in the Continental Shelf (Libyan Arab Jamahiriya/Malta) case, ‘If such a use of proportionality were right, it is difficult to see what room would be left for any other consideration; for it would be at once the principle of entitlement to continental shelf rights and also the method of putting that principle into operation.’ (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, i.c.j. Reports 1985, p. 45, para. 58.) The Court’s task is to check for a significant disproportionality. What constitutes such a disproportionality will vary according to the precise situation in each case, for the third stage of the process cannot require the Court to disregard all of the considerations which were important in the earlier stages. Moreover, the Court must recall what it said more recently in the Maritime Delimitation in the Black Sea case, ‘that various tribunals, and the Court itself, have drawn different conclusions over the years as to what disparity in coastal lengths would constitute a significant disproportionality which suggested the delimitation line was inequitable and still required adjustment’ (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, i.c.j. Reports 2009, p. 129, para. 213). itlos, in the Bay of Bengal case, spoke of checking for ‘significant disproportion’ (Judgment of 14 March 2012, para. 499). The Arbitration Tribunal in the Barbados/Trinidad and Tobago case referred to proportionality being used as ‘a final check upon the equity of a tentative delimitation to ensure that the result is not tainted by some form of gross disproportion’ (Award of 11 April 2006, riaa, Vol. xxvii, p. 214, para. 238; ilr, Vol. 139, pp. 522–523; emphasis added). The Tribunal in that case went on to state that this process ‘does not require the drawing of a delimitation line in a manner that is mathematically determined by the exact ratio of the lengths of the relevant coastlines. Although mathematically certain, this would in many cases lead to an inequitable result. Delimitation rather requires the consideration of the relative lengths of coastal frontages as one element in the process of delimitation taken as a whole. The degree of adjustment called for by any given disparity in coastal lengths is a matter for the Tribunal’s judgment in the light of all the circumstances of the case.’ (riaa, Vol. xxvii, p. 235, para. 328; ilr, Vol. 139, p. 547.)

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The Court thus considers that its task, at this third stage, is not to attempt to achieve even an approximate correlation between the ratio of the lengths of the Parties’ relevant coasts and the ratio of their respective shares of the relevant area. It is, rather, to ensure that there is not a disproportion so gross as to ‘taint’ the result and render it inequitable. Whether any disproportion is so great as to have that effect is not a question capable of being answered by reference to any mathematical formula but is a matter which can be answered only in the light of all the circumstances of the particular case. Application of the adjusted line described in the previous section of the Judgment has the effect of dividing the relevant area between the Parties in a ratio of approximately 1:3.44 in Nicaragua’s favour. The ratio of relevant coasts is approximately 1:8.2. The question, therefore, is whether, in the circumstances of the present case, this disproportion is so great as to render the result inequitable. (…) Analysis of the jurisprudence of maritime delimitation cases shows that the Court and other tribunals have displayed considerable caution in the application of the disproportionality test. Thus, the Court observes that in the case concerning Continental Shelf (Libyan Arab Jamahiriya/ Malta), the ratio of relevant coasts was approximately 1:8, a figure almost identical to that in the present case. The Court considered, at the second stage of its analysis, that this disparity required an adjustment or shifting of the provisional median line. At the third stage, it confined itself to stating that there was no significant disproportionality without examining the precise division of shares of the relevant area. That may have been because of the difficulty of determining the limits of the relevant area due to the overlapping interests of third States. Nevertheless, it is clear that the respective shares of Libya and Malta did not come anywhere near a ratio of 1:8, although Malta’s share was substantially reduced from what it would have been had the boundary followed the provisional median line. Similarly in the case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), the ratio of relevant coasts was approximately 1:9 in Denmark’s favour (Judgment, i.c.j. Reports 1993, p. 65, para. 61). That disparity led the Court to shift the provisional median line. Again, the Court did not discuss, in its Judgment, the precise shares of the relevant area (referred to in that Judgment as the ‘area of overlapping potential entitlements’) which the line thus established attributed to each State, but the description in the Judgment and the depiction of the boundary on the maps attached thereto show

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that it was approximately 1:2.7. The Court did not consider the result to be significantly disproportionate. The Court concludes that, taking account of all the circumstances of the present case, the result achieved by the application of the line provisionally adopted in the previous section of the Judgment does not entail such a disproportionality as to create an inequitable result.154 Thus, the Court has been able to construct a predictable approach, which is not only an important element of legal security for States willing to submit their disputes to the Court, but also provides a methodology which may guide other Courts and Tribunals: There is every indication that this three-step methodology now constitutes the usual approach to be espoused in appropriate cases of maritime delimitation. Its validity as a tried and true reflection of the current state of international law has recently been affirmed by itlos in its first ever maritime delimitation case[155]. Thus, itlos endorsed the Court’s three-step methodology in a case where it was called upon to determine a maritime boundary between Bangladesh and Myanmar in the Bay of Bengal.156 The special characteristics of the Maritime Dispute between Peru and Chile are also worth mentioning here. The Court found that an agreed maritime boundary existed between the Parties, as was claimed by Chile. In particular, the Court noted that, among several agreements adopted by Peru and Chile in the early 1950s, the 1954 Special Maritime Frontier Zone agreement, signed by Chile, Ecuador and Peru, acknowledged the existence of such an agreed maritime boundary.157 However, the 1954 Agreement did not give indication 154 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012, pp. 715–717. 155 itlos, Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, pp. 74–76, paras. 233–240. 156 Speech by H.E. Judge Peter Tomka to the Sixth Committee of the General Assembly, 2 November 2012 (“The contributions of the Court to the law governing maritime delimitation”), p. 11. Available at: http://www.icj-cij.org/presscom/files/6/17156.pdf. 157 In this connection, the Court recalled that it had recognized, in an earlier case, the possibility for States to reach a “tacit agreement” regarding the establishment of a boundary, although, given the grave importance of such matter, the “evidence of a tacit legal agreement must be compelling”, Territorial and Maritime Dispute between Nicaragua and

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of the nature, nor indicate the extent of the maritime boundary, except that it extended beyond 12 nautical miles from the coast. The Court therefore considered several elements with a view to determine the precise content of the tacit agreement which the Parties had reached, in particular with regard to the extent of their maritime boundary.158 Having concluded that the agreed maritime boundary did not extend beyond 80 nautical miles, it remained for the Court to determine the course of the maritime boundary from that point on, i.e. not from the parties’ coasts (the low-water line), but from a point further seaward.159 Despite of this, the Court applied its usual three-step methodology with the aim to achieve an equitable solution. It first selected appropriate base points in order to draw a provisional equidistance line starting at the endpoint of the existing maritime boundary.160 The Court then examined whether there were relevant circumstances calling for an adjustment of the provisional equidistance line, and found that there was no such basis for adjusting the equidistance line with the purpose of achieving an equitable result. In the final phase of the delimitation process, the Court considered the equitable nature of the result by engaging in a broad assessment of disproportionality.161

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Honduras in the Carribean Sea (Nicaragua v. Honduras), Judgment, i.c.j. Reports 2007 (ii), p. 735, para. 235. In the Maritime Dispute (Peru v. Chile), the Court found that the 1954 Special Maritime Frontier Zone Agreement “reflect[ed] a tacit agreement which they had reached earlier”, and “cement[ed] the tacit agreement”, Judgment, i.c.j. Reports 2014, pp. 38–39, para. 91. Ibid., pp. 41–42, paras. 103 et s. The Court assessed the Parties’ relevant practice in this respect, including the fishing activity in relation to which the 1954 agreement was adopted (i.e. the operation of small vessels which took place along the parallel recognized as the maritime boundary), the contemporaneous developments in the law of the sea, the legislative practice and enforcement activities by the Parties, as well as subsequent agreements or arrangements, ibid., pp. 41–57, paras. 103–148. The Court concluded that the evidence at its disposal did not allow it to conclude that the maritime boundary, the existence of which had been acknowledged by the Parties, extended beyond 80 nautical miles along the parallel from its starting point, ibid., p. 57, para. 149. Id., p. 66, para. 183. For this purpose, only those base points on the Parties coasts which were more than 80 nautical miles from this endpoint could be matched. See the sketch-map n°3 inserted in the Judgment, ibid., p. 68. The Court recalled that it had not always to assess the equitableness of the result in seeking to define the equities in arithmetical terms, in particular by calculating the proportion of the division of the relevant area with regard to the lengths of the relevant coasts and of the extent of the relevant area. Given the unusual situation it faced in this case, the Court observed that the existence of an agreed line would have made difficult, if not impossible, such calculation. Ibid., p. 69, para. 193.

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Lastly, it should be emphasized that the Court has increasingly drawn on the case law of other international tribunals. For example, in its Judgment in the case between Nicaragua and Colombia, the Court makes extensive use of and reference to decisions of arbitral tribunals, as well as of itlos, recalling the agreement of the Parties “that the applicable law in [the] case [was] customary international law as reflected in the case law of [the icj], the International Tribunal for the Law of the Sea (itlos) and international arbitral courts and tribunals”.162 The Court’s jurisprudence not only has made a particular contribution to the clarification and development of rules relating to the delimitation of maritime areas such as the continental shelf and the Exclusive Economic Zone. It also has displaced most of the fears sometimes expressed because of the possible divergent approaches of international courts and tribunals towards the same legal issues. In settling major maritime delimitation disputes the Court also played a role in the unifying or streamlining of the interpretation and application of certain rules of international law, thereby fulfilling its mission as the only international Court with a general and universal jurisdiction. Select Bibliography A. Abou-El-Wafa, « Les différends territoriaux concernant les frontières terrestres dans la jurisprudence de la Cour internationale de Justice », Collected Courses of the Hague Academy of International Law, vol. 343 (2009), pp. 9–570. D. Bardonnet, “Les frontières terrestres et la relativité de leur tracé (Problèmes juridiques choisis)”, Collected Courses of the Hague Academy of International Law, vol. 153 (1976), pp. 9–166. S. Bastid, “Les problèmes territoriaux dans la jurisprudence de la Cour internationale de Justice”, Collected Courses of the Hague Academy of International Law, vol. 107 (1962), pp. 361–496. Jiuyong Shi, “Maritime Delimitation in the Jurisprudence of the International Court of Justice”, Chinese Journal of International Law, vol. 9, 2010, pp. 271–291. M. Kohen, Possession contestée et souveraineté territoriale, Paris : Presses universitaires de France, 1997, 582 p. R. Lagoni, D. Vigne, (eds.), Maritime Delimitation, Leiden/Boston : Martinus Nijhoff, 2006, 241 p. 162 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, i.c.j. Reports 2012, p. 666, para. 114. See also pp. 690–691, para. 178 (entitlement to a territorial sea of 12 nautical miles around an island) and para. 240 (the “disproportionality test”).

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Le processus de délimitation maritime. Étude d’un cas fictif, Colloque international, Monaco, 27-29 March 2003, Institut du droit économique de la mer, Pedone, Paris, 2004. L. Sánchez Rodríguez, “L’uti possidetis et les effectivités dans les contentieux territoriaux et frontaliers”, Collected Courses of the Hague Academy of International Law, vol. 263 (1997), pp. 163–166. Y. Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, Portland: Hart Publishing, 2006, 425 p. P. Weil, Perspectives du droit de la délimitation maritime, Paris : Pedone, 1988, 319 p.

chapter 5

The icj and the Implementation of the Law of State Responsibility In the well-known words of Charles de Visscher, State responsibility is the “necessary corollary” of the equality of States.1 It is also an essential condition for the effectiveness of any legal order that a breach of an obligation entails legal consequences, irrespective of the means (compulsory or otherwise) available to implement those consequences in that legal order and of how limited those means might appear to be, especially in international law, if a comparison is erroneously drawn between the organization of the international community, composed of equal sovereign States, and the integrated and well-equipped machinery available to States at municipal level to enforce the legal responsibility of individuals. The law of international responsibility is essentially founded on customary rules, which first evolved through international arbitration from the early nineteenth century onwards. It was subsequently the subject of numerous doctrinal works, and a topic that was continuously on the agenda during the various codification attempts of the twentieth century, from the Geneva codification of 1930 up until 2001, the year in which the International Law Commission (ilc) finally completed a codification project that had been initiated in 1949, when that Commission first began its work.2 That such a project took so much time to complete demonstrates the importance of the law of State responsibility, both in terms of the contentious

1 Ch. de Visscher, La responsabilité des États, Brill, Bibliotheca Visseriana, Leiden, 1924, p. 90. 2 This topic was one of the first selected by the Commission, during its first session in 1949. The Commission finally adopted the “draft articles on Responsibility of States for international wrongful acts”, with commentaries, in 2001. As recommended by the Commission, the General Assembly first welcomed the conclusion of the work of the ilc on this topic, took note of the articles and annexed their text to its resolution 56/83 of 12 December 2001. Since 2001, the General Assembly further examine, with a view to taking a decision, the question of a convention on responsibility of States for internationally wrongful acts or other appropriate action on the basis of the articles, see ga resolution 68/104 of 16 December 2013. Reference will be made hereinafter to the “ilc Articles” or “Articles” on State responsibility.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004328860_007

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legal issues it involves and its practical relevance to inter-State relationships. Indeed, the law of State responsibility may arise not only in connection with the fundamental issues of international law, but in every sort of legal dealing between States, on a frequent, if not daily, basis. For a long time there were no written rules on the general principles of the law of State responsibility; as a result, the interplay between the process of codifying customary rules and the development of international case law, particularly that of the Permanent Court of International Justice (pcij) and the International Court of Justice (icj), was of paramount importance to the clarification and evolution of the law of State responsibility. However, the completion of the ilc’s work in 2001 did not put an end to the long history of that important chapter of international law.3 International disputes concerning State responsibility form one of the categories of legal disputes for the solution of which the Court was instituted,4 and cases relating to issues of State responsibility continue to be referred to the Court by States on a regular basis.5 The icj is in a position to further clarify the nature and scope of the rules embodied in the ilc Articles, and thus to contribute to the strengthening and progressive development of the law of international responsibility.6 3 It should be noted that, in addition to the responsibility of States for internationally wrongful acts, a number of other related areas have undergone significant developments in recent decades: the responsibility of international organizations, the criminal responsibility of individuals, the “responsibility” of States for lawful activities (i.e., the duty to make reparation or compensate for damages/injury caused by hazardous activities). Although these issues have occasionally been addressed, at least indirectly, by the Court when dealing with the cases referred to it, they will not be examined in the present chapter. 4 See Art. 36, para. 2 (c) and (d) of the Statute. It is well established that disputes concerning the interpretation and/or application of a treaty encompass disputes relating to reparations which may be due on account of a breach of the treaty: “Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application” (Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, p.c.i.j., Series A, No. 9, p. 21). 5 As from 2000, 26 cases introduced before the Court related essentially to disputes concerning State responsibility, 9 to maritime and territorial disputes, and 4 to the revision or interpretation of earlier Court’s judgments. Moreover, it should be noted that issues of States responsibility may also be raised by States in the context of disputes relating primarily to maritime or territorial disputes. 6 As will be seen, the Court also took advantage of advisory opinions to make a valuable contribution to the law of State responsibility.

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1

The Basic Principles of the International Responsibility of States

According to the classical idea that prevailed for a long time in international law, responsibility was (exclusively) conceived of as the obligation to make reparation for the damage caused by a violation of an international obligation. The existence of an injury was a necessary condition, together with a breach of an international obligation, for the responsibility of the State to be engaged. However, as international society and international law have evolved, and numerous scholarly writings have appeared on the subject of the law of State responsibility, emphasis has increasingly been placed on the varied content and functions of international responsibility (reparation, cessation, sanctions and even punishment). The central defining element of international responsibility has thus changed from being the existence of an injury to a mere breach of international law. According to the first of the ilc Articles, “[e]very internationally wrongful act of a State entails the international responsibility of that State”. Although such an approach may have been characterized as “revolutionary”,7 the concept of “injury” has in fact remained central to the implementation of State responsibility, at least indirectly.8 Despite the different conceptual definitions of the international responsibility of a State, a number of principles are now well established as a matter of customary international law, and have been recognized both in the case law of the icj, as well as of its predecessor the pcij, and in the Articles drafted by the ilc. The first of these is the definition of an “internationally wrongful act”, triggering the responsibility of a State. As stated in Article 2, “[t]here is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”. The pcij and the icj have both referred to those two elements as being the conditions required for establishing the existence of an internationally wrongful act. In the Phosphates in Morocco case, the pcij expressly stated that international responsibility would be incurred by “an act…attributable to the 7 A. Pellet, Annuaire français de droit international, 1996, Vol. 42, p. 7. 8 See ilc Articles on State Responsibility, Part Three (The implementation of the international responsibility of a State), Chapter i (invocation of the responsibility of a State), Art. 42 (invocation of responsibility by an injured State) and Art. 48 (invocation of responsibility by a State other than an injured State), Yearbook of the International Law Commission, 2001, Vol. ii, Part Two. See also infra, Sec. 2 and 3.

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State and described as contrary to the treaty right[s] of another State”.9 In the case concerning United States Diplomatic and Consular Staff in Tehran,10 the icj confirmed that, in order to establish the responsibility of a State, it is necessary, first, to “determine how far, legally, the acts in question may be regarded as imputable to th[at]…State [and,] secondly, [to] consider their compatibility or incompatibility with the obligations of [said State] under treaties in force or under any other rules of international law that may be applicable”.11 There seems, however, to be no legal rule stipulating the order in which the Court should determine whether both elements of an internationally wrongful act are established. In the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court first determined that the massacres committed in Srebrenica constituted acts of genocide, pursuant to the 1948 Convention,12 before considering whether “the acts of genocide [thus established] could be attributed to the Respondent under the rules of customary international law of State responsibility”.13 After considering here each of these elements, as well as the circumstances in which the internationally wrongful character of an act may be precluded, more 9 10 11

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Phosphates in Morocco, Judgment, 1938, p.c.i.j., Series A/B, No. 74, p. 2. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, p. 29, para. 56. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, pp. 117–118, para. 226, and Gabčikovo-Nagymaros Project (Hungary/ Slovakia), Judgment, i.c.j. Reports 1997, p. 54, para. 78. In this connection, the Court has confirmed that “State responsibility can arise under the Convention for genocide and complicity, without an individual being convicted of the crime or an associated one”, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, pp. 119–120, para. 182. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, p. 199, para. 379. The Court followed the same approach in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 239, para. 207, and in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia and Montenegro), Judgment, i.c.j. Reports 2015, pp. 55, 79, 129, paras. 112, 202 and 442.

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recent developments will be briefly addressed, both in the codification process of the law of international responsibility and in the Court’s jurisprudence. The Breach of an International Obligation As regards the nature of the conduct capable of engaging a State’s responsibility, the pcij affirmed, on several occasions, that a breach of an international obligation incurs the responsibility of a State even if the conduct in question is lawful under its internal law.14 The internationally wrongful act is a wholly autonomous notion vis-à-vis the municipal laws of States. The ilc upheld this principle in Article 3, which states that “[t]he characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law”. Reference has also been made, in this context, to the rule enshrined in Article 27 of the Vienna Convention on the Law of Treaties, according to which “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.15 Conversely, as illustrated by the Judgment in the elsi case, the fact that an act of a public authority may have been unlawful in municipal law does not necessarily mean that that act was unlawful in international law, as a breach of treaty or otherwise. A finding of the local courts that an act was unlawful may well be relevant to an argument that it was also arbitrary; but by itself, and without more, unlawfulness cannot be said to amount to arbitrariness…Nor does it follow from a finding by a municipal court that an act was unjustified, or unreasonable, or arbitrary, that that act is necessarily to be classed as arbitrary in international law, though the qualification given to the impugned act by a municipal authority may be a valuable indication.16 14

15 16

S.S. “Wimbledon”, Judgments, 1923, p.c.i.j., Series A, No. 1, p. 12; Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, p.c.i.j., Series A, No. 7, p. 19; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, p.c.i.j., Series A/B, No. 44, p. 4. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), p. 60, para. 121. Elettronica Sicula S.p.A. (elsi) (United States of America v. Italy), Judgment, i.c.j. Reports 1989, p. 74, para. 124.

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As the ilc further explained: The rule that the characterization of conduct as unlawful in international law cannot be affected by the characterization of the same act as lawful in internal law makes no exception for cases where rules of international law require a State to conform to the provisions of its internal law, for instance by applying to aliens the same legal treatment as to nationals. It is true that in such a case, compliance with internal law is relevant to the question of international responsibility. But this is because the rule of international law makes it relevant, e.g., by incorporating the standard of compliance with internal law as the applicable international standard or as an aspect of it. Especially in the fields of injury to aliens and their property and of human rights, the content and application of internal law will often be relevant to the question of international responsibility. In every case it will be seen on analysis that either the provisions of internal law are relevant as facts in applying the applicable international standard, or else that they are actually incorporated in some form, conditionally or unconditionally, into that standard.17 * As evidenced by the icj’s dictum in the above-mentioned United States Diplomatic and Consular Staff in Tehran case, there is a breach of international law when a State’s conduct amounts to a failure to comply with an international obligation incumbent upon it “under treaties in force or under any other rules of international law that may be applicable”.18 This means that a State’s responsibility is engaged “regardless of [the] origin or character” of the obligations ­incumbent upon it, as recalled in Article 12 of the ilc Articles on State Responsibility. This provision, although still under consideration by the ilc at that time, was referred to by the Court in the case concerning the GabčíkovoNagymaros Project, in support of the proposition that it is “well established that, when a State has committed an internationally wrongful act, its international 17

18

Commentary to Art. 3, Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 38, para. (7). See also Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo), Merits, Judgment, I.C.J. Reports 2010, p. 663, para. 65. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, p. 29, para. 56; emphasis added.

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responsibility is likely to be involved whatever the nature of the obligation it has failed to respect”.19 The general scope of this principle extends not only to the “source” or “nature”, conventional or other, of the obligation with which a State has failed to comply, but also to its “character” according to the wording of Article 12. Thus, “State responsibility can arise from breaches of bilateral obligations or of obligations owed to some States or to the international community as a whole. It can involve relatively minor infringements as well as the most serious breaches of obligations under peremptory norms of general international law”.20 Following the approach taken by the ilc, such distinctions are not relevant for establishing the existence of the responsibility of a State, but only as regards the consequences of certain breaches of international law. The ilc explained that the “character” of the obligation breached is irrelevant as a matter of principle, although it may be of a decisive importance in practice, in particular in order to ascertain whether and when a breach has occurred.21 Such is the case, for example, of the classification of an international rule as entailing an obligation of conduct or an obligation of result (see infra). In the Gabčíkovo-Nagymaros Project case, the Court drew a formal distinction between the different sets of rules which may apply in circumstances where a breach of a treaty is alleged. While it felt that it “need not to dwell upon the question of the relationship between the law of treaties and the law of State responsibility”, it nevertheless emphasized that: those two branches of international law obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of State responsibility. Thus, the Vienna Convention of 1969 on the Law of Treaties confines itself to defining—in a limitative manner—the conditions in which a 19 20 21

Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, i.c.j. Reports 1997, pp. 38–39, para. 47. Commentary to Art. 12, para. (6), Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, pp. 55–56. Ibid., p. 56.

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treaty may lawfully be denounced or suspended; while the effects of a denunciation or suspension seen as not meeting those conditions are, on the contrary, expressly excluded from the scope of the Convention by operation of Article 73.22 * It is indisputable that the conduct triggering a State’s responsibility may consist of an act or of an omission (see Art. 2).23 Thus, in the Corfu Channel case, the Court considered, on the one hand, that Albania knew, or should have known, that the mines in question were located in its territorial waters, and, on the other hand, that its conduct constituted a sufficient base for establishing its responsibility, since it had a duty to warn third States of their presence.24 In the case concerning United States Diplomatic and Consular Staff in Tehran, the Court concluded that Iran’s responsibility was engaged because of the 22

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Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, i.c.j. Reports 1997, p. 38, para. 47. This distinction is not always as “obvious” as it may seem, and both branches might sometimes be simultaneously invoked in relation to the same question (e.g., in the case of the non-performance of a treaty obligation, assumed as such by a State in response to an alleged breached of the same treaty by another State party, and which could then be considered under both the law of treaties (suspension of the operation of a treaty as a consequence of its material breach) and the law of State responsibility (countermeasures)). See the judgment in the case concerning the Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), in which the Court considered in turn whether the violation of the Interim Accord by the fyrom could justify the failure by Greece to comply with its obligation under the same Accord as an application of a general principle of international law (the exceptio non adimpleti contractus), as a response to a material breach of a treaty under Article 60 of the Vienna Convention, and as a countermeasure under the law of State responsibility, Judgment of 5 December 2011, i.c.j. Reports 2011, pp. 680 et seq., and 690–692, paras. 161–165. The Court found that the justifications invoked by Greece could not be upheld, for the conditions on which would have rest their successful invocation had not been satisfied in the particular case. The Court therefore did not feel it necessary to determine whether the exceptio non adimpleti contractus forms part of contemporary international law, and did not address the relationships between the law of treaties and the law of countermeasures for that matter. This is clearer in the French text, which uses the neutral word “fait internationalement illicite”. In French, Art. 2 reads as follows: “Il y a fait internationalement illicite de l’État lorsqu’un comportement consistant en une action ou une omission…”. Corfu Channel (United Kingdom v. Albania), Merits, Judgment, i.c.j. Reports 1949, pp. 22–23.

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“inaction” of the Iranian authorities, the latter having “failed to take [the] appropriate steps” required in the circumstances.25 In practice, the question whether a State may incur responsibility solely for failing to take appropriate action under certain circumstances is closely linked to the character of the “primary” rules that are binding upon that State (the content of which, it will be recalled, is not specified in the ilc Articles on State Responsibility). Thus, in the case concerning Armed Activities on the Territory of the Congo,26 the Court decided that Uganda’s responsibility was engaged by its failure to prevent the violations of human rights and international humanitarian law committed by rebels, acting on their own behalf, in the Ituri region occupied by Uganda. The Court considered that it was the duty of the occupying power “to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied territory”.27 This obligation included, in particular, the duty to “secure respect for the applicable rules of international human rights law and international humanitarian law, to protect inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party”.28 The Court also decided that Uganda had “violated its duty of vigilance by not taking adequate measures to ensure that its military forces did not engage in looting, plundering and exploiting of the drc’s natural resources”.29 In this respect, the Court based its finding on  the “primary rules” of the law of armed conflicts, rather than on the principles regarding the attribution of conduct to a State (on the issues of attribution, see infra).30 It is in cases in which the State was under a specific obligation, by virtue of a treaty or of a general rule of international law, to prevent a particular outcome, that the Court has proceeded to rely on the classification of legal obligations,

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United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, pp. 31 and 32, paras. 63 and 67. See also, infra, the particular issue of attribution raised in that case. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 168. Ibid., p. 231, para. 178. Ibidem. Ibid., p. 251, para. 246. “According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol i additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces”, ibid., p. 242, para. 214.

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not included in the ilc Articles, distinguishing between obligations of conduct (or means) and obligations of result. It will be recalled that in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Court found that, on the basis of ­conventional law (i.e., the Genocide Convention), the Respondent had violated its obligation to prevent the genocide committed in Srebrenica and had thereby incurred its international responsibility. Although the Court took care to clarify that its decision did not, in this case, purport “to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation to prevent certain acts”,31 it nevertheless used a very general formulation, which could be applied in other circumstances. The Court clarified the rules governing the obligation of prevention under the Genocide Convention by relying on a broader classification of obligations and by distinguishing between obligations of conduct and obligations of result. It thus explained that: it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of ‘due diligence’, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things,

31

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), pp. 220–221, para. 429. The Court noted that “[t]he content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented”. At the same time, it explained that the application of the lex specialis, i.e., the Genocide Convention, in that case did not exclude a priori the application of customary rules on the international responsibility of the State.

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on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result—averting the commission of genocide—which the efforts of only one State were insufficient to produce. .......................................................................................................................................... [Moreover], a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article iii of the Convention) begins that the breach of an obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated by the ilc in Article 14, paragraph 3, of its Articles on State Responsibility: .......................................................................................................................................... ‘3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.’ This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected

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of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article iii of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent.32 The Court decided that, in the case in question, the then fry had been in a position of influence vis-à-vis the Serbs in Bosnia and that, while it had not been established that “the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent…, they could hardly have been unaware of a serious risk”.33 Under such circumstances, the Yugoslav authorities should have “made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised”.34 The distinction between obligations of conduct and obligations of result has been restated in subsequent icj case law. In the case concerning Pulp Mills on the River Uruguay,35 the Court had to determine whether Uruguay had unlawfully authorized the construction of two pulp mills on the River Uruguay. Argentina alleged that Uruguay had not complied with its procedural and substantive obligations laid down in the 1975 Statute of the River Uruguay. One such obligation was the obligation to co-ordinate measures to avoid changes to the ecological balance of the River. The Court declared that the said obligation laid down in Article 36 [of the 1975 Statute of the River Uruguay] was addressed to both parties and prescribe[d] the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct. Both parties [were] therefore called upon, under Article 36, to exercise due diligence in acting through

32 33 34 35

Ibid., pp. 221–222, paras. 430–431. Ibid., p. 224, para. 436. Ibid., p. 225, para. 438. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), p. 14.

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the Commission for the necessary measures to preserve the ecological balance of the river.36 In this particular case, the Court ruled that Argentina had not sufficiently demonstrated that Uruguay “ha[d] refused to engage in such a co-ordination as envisaged by Article 36, in breach of that provision”.37 However, it found Uruguay to be in violation of several other articles of the 1975 Statute of the River Uruguay.38 The Attribution of Conduct to a State As the Court recalled, in 2005, “[a]ccording 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’”.39 Indeed, Article 4 adopted by the ilc in 2001 is to the same effect. This Article provides as follows: (1) The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. (2) An organ includes any person or entity which has that status in accordance with the internal law of the State.40 36 37 38 39

40

Ibid., p. 77, para. 187. Ibid., para. 189. Ibid., p. 106, para. 282. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 242, para. 213. See also: 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. In its Judgment of 25 May 1926 in the case concerning Certain German interests in Polish Upper Silesia (Germany v. Poland), the pcij concluded that a State’s responsibility would be incurred by acts of the executive branch, see Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, p.c.i.j., Series A, No. 7, p. 19. For its part, the icj has recognized the responsibility of a State for internationally wrongful acts committed by one of its judicial organs. For example, in the Arrest Warrant case, the Court considered that Belgium’s responsibility was incurred by the issuance of an arrest warrant, by one of its investigation judges, for the Congolese Minister for Foreign Affairs, in breach of the latter’s jurisdictional immunity, see Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, i.c.j. Reports 2002, pp. 29–32, paras. 70–71 and 75.

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In the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court referred to this rule as “one of the cornerstones of the law of State responsibility”, and specifically noted that it was reflected in Article 4 of the ilc Articles on State Responsibility.41 The Genocide case also confirmed that the ilc Articles adequately (albeit not completely, see infra) reflected the different conditions under which conduct may be attributable to a State. The Court thus further recalled that the conduct of persons or entities not having the status of State organs was likely to incur the responsibility of the State, and addressed the conditions which would enable it to draw conclusions regarding the attribution to the State of the conduct of individuals, group of individuals and other private entities.42 The Court had, in fact, already ruled that a State is responsible for the conduct of individuals who, in exceptional circumstances, without being an organ of the State, are nevertheless acting on the State’s instructions, or under its direction or control, in carrying out wrongful conduct—situations now envisaged by Article 8 of the ilc Articles on State Responsibility.43 41

42

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), p. 202, para. 385. Brief mention should be made here of the case concerning United States Diplomatic and Consular Staff in Tehran, in which the Court found that the Iranian authorities had approved the occupation of the United States embassy and the detention of its staff by individuals, and had, consequently, been deemed to have themselves committed those acts. In the view of the Court, those acts were “acts of that State. The militants…had become agents of the Iranian State for whose acts the State itself was internationally responsible” (United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, p. 35, para. 74). It should be recalled that, in this case, the “icj drew a clear distinction between the legal situation immediately following the seizure of the United States embassy and its personnel by the militants [in relation to which the Iranian State incurred responsibility for its failure to act to prevent that action], and that created by a decree of the Iranian State which expressly approved and maintained the situation” (Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 53). The second situation is now covered by Art. 11 of the ilc Articles on State Responsibility: “Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.” “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

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In the case concerning Military and Paramilitary Activities in and against Nicaragua,44 while the Court did not accept that the acts of anti-revolutionary forces, the contras, were attributable to the United States, it did specify the criteria that would enable acts of individuals or groups of persons who are not organs of the State to be attributed to the latter. Thus, the Court considered that, in order for the responsibility of the United States to be engaged, it had to “determine…whether or not the relationship of the contras to the United States government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States government, or as acting on behalf of that government”.45 The Court found that the evidence available did not permit it to establish the contras’ “complete dependence” on the financial aid and assistance of the United States.46 The Court further found that it had not been established that the United States “had effective control of the military and paramilitary operations in the course of which the alleged violations were committed”.47 It did, however, find that the United States had incurred its responsibility because of the aid it had provided to the contras.48 The question of attribution was further addressed in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), in which the Court recognized that the mlc (Movement for the Liberation of the Congo) had received military training and support from Uganda, but considered that the evidence produced failed to prove that the mlc had acted as an organ of Uganda, in the sense of the customary rule reflected in Article 4 of the ilc Articles on State Responsibility, or that it had acted in the capacity of an entity exercising the prerogatives of a public authority on behalf of that State, in the sense of Article 5. Further, the Court did not accept that the mlc had acted “‘on the instructions of, or under the direction or control of’ Uganda”, in the sense of Article 8.49 It did observe, however, that, even though it had not been established that the mlc’s conduct was attributable to Uganda, the military training and support provided to that movement 44 45 46 47 48 49

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, p. 14. Ibid., p. 62, para. 109. Ibid., pp. 62–63, paras. 109–110. Ibid., pp. 64–65, para. 115. Ibid., pp. 62, para. 108, 124, para. 242, and 146, para. 292 (3). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 226, para. 160.

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violated certain of Uganda’s international obligations,50 notably those relating to the principles of non-use of force and non-intervention.51 The Court also found that the conduct of the updf (Uganda People’s Defence Forces) as a whole, and that of individual updf soldiers and officers, were attributable to Uganda, since the updf was a part of Uganda’s armed forces. Consequently, it decided that it was immaterial whether those soldiers and officers had acted as persons exercising the prerogatives of a public authority, or whether they had acted contrary to the instructions given. It observed that the question whether those soldiers and officers had exceeded their authority was equally devoid of relevance.52 The Court thus (implicitly) acknowledged the principle reflected in Article 7 of the ilc Articles on State Responsibility.53 Despite the Court’s Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, and its application of the so-called “effective control” criterion, subsequent jurisprudence has raised questions about the applicable rules of customary law relating to international responsibility. The Appeal Chamber of the International Criminal Tribunal for the former Yugoslavia (icty) found in the Tadić case, albeit for a different purpose (i.e., the characterization of the war in the former Yugoslavia as an international or non-international armed conflict), that “the requirement of international law for the attribution of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeal Chamber [thus failed] to see why, in each and every circumstance, international law should require a high threshold for the test of control”.54 It held that the requisite degree of control by the Yugoslavian “authorities over [the] armed forces [concerned] required by international law for considering the armed conflict to be international, was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations”.55 The “overall control” test, if applicable under the law of 50 51 52 53

54 55

Ibid., p. 226, para. 161. Ibid., pp. 226–227, paras. 162–163. Cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), supra note 48. Ibid., p. 242, paras. 213–214. Article 7: “The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.” icty Appeals Chamber, IT-94-1, Prosecutor v. Tadić, para. 117; emphasis in original. Ibid., para. 145.

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State responsibility, would have led to lower the threshold for attributing acts of individuals or private groups to the State, insofar as it would not require, contrary to the criterion used in the Military and Paramilitary Activities in and against Nicaragua Judgment, the proof that each and every alleged violations of international law by the individuals or groups occurred under the specific direction or instructions of the State.56 The ilc did not take a firm stance on the apparent divergence of approaches taken by the icj in its Military and Paramilitary Activities in and against Nicaragua Judgment and by the icty in its Tadić decision. While noting that “the majority [of the Appeal Chamber] considered it necessary to disapprove the icj approach in the Military and Paramilitary Activities in and against Nicaragua case”, the ilc observed that “the legal issues and the factual situation in the Tadić case were different from those facing the Court in that case”; “[t] he tribunal’s mandate [was] directed to issues of individual criminal responsibility, not State responsibility, and the question in that case concerned not responsibility but the applicable rules of international humanitarian law. In any event it [was] a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it”.57 The case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) provided the Court with an opportunity to settle the controversy and to strongly reaffirm the principles governing the attribution to the State of acts of individuals or groups of persons. The Court first examined whether the constitutive acts of genocide committed at Srebrenica should be considered as acts of the then fry under international law. The Court was of the opinion that it was not proven that any of the de jure organs of the fry (the army and political leaders) had been involved

56 See infra, note 62 et s. 57 Commentary to Art. 8, Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 48, para. (5). According to that commentary, “[i]t is clear then that a State may, either by specific directions or by exercising control over a group, in effect assume responsibility for their conduct. Each case will depend on its own facts, in particular those concerning the relationship between the instructions given or the direction or control exercised and the specific conduct complained of. In the text of Article 8, the three terms ‘instructions’, ‘direction’ and ‘control’ are disjunctive; it is sufficient to establish any one of them. At the same time it is made clear that the instructions, direction or control must relate to the conduct which is said to have amounted to an internationally wrongful act”, ibid., para. (7).

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in the said genocide. It added that the paramilitary group known as the “Scorpions” was not a de jure organ of the fry, and that “in any event the act of an organ placed by a State at the disposal of another public authority shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed”.58 Secondly, the Court examined whether certain entities, such as the Republika Srpska or its army, the vrs, could be considered at the relevant time as being de facto organs of the fry, i.e., organs which, “while they d[id] not have the legal status of State organs, in fact act[ed] under such strict control by the State that they [should have] be[en] treated as its organs for purposes of the necessary attribution leading to the State’s responsibility for an internationally wrongful act”.59 To that end, it referred to its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, explaining that it was necessary to determine whether the organs in question were “complete[ly] dependen[t]” on the State concerned. In so doing, the Court introduced an intermediate situation, not explicitly referred to in the ilc Articles on State Responsibility, namely, the notion of a de facto organ, “somewhere in between the institutional criterion of Article 4[, paragraph 2] of the ilc Articles and the Nicaragua test reflected in Article 8”.60 Indeed, the Court felt that it was necessary to emphasize that the question of attribution on the basis of direction or control (which it would consider immediately thereafter), “despite some appearance to the contrary, [was not] the same as the question whether those persons [who committed the acts of genocide] should be equated with State organs de facto, even though not enjoying that status under internal law”.61 In

58

59 60

61

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), p. 204, para. 389. The Court appears to have referred implicitly here to the rule embodied in Article 6 of the ilc Articles on State responsibility, according to which: “The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.” Ibid., p. 204, para. 391. A. Pellet, “Some remarks on the recent case law of the International Court of Justice on responsibility issues”, International Law—A Quiet Strength/Le droit international, Une force tranquille. (Miscellanea in memoriam Géza Hercegh), Pazmany Press, Budapest, 2011, p. 125. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), p. 207, para. 397.

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the case in question, it found that neither the Republika Srpska nor the vrs could be viewed as being in a situation of complete dependence on the fry. The existence of strong connections between them and the fry could not prevail over their autonomy vis-à-vis that State. Thirdly, the Court examined whether, in accordance with the customary rule reflected in Article 8 of the ilc Articles on State Responsibility, the constitutive acts of genocide committed at Srebrenica had been “committed by persons who, though not having the status of organs of the respondent State, nevertheless acted on its instructions or under its direction or control”.62 The Court again referred to its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua, in order to explain the need to prove that the persons or group concerned had acted on the “instructions” and under the “effective control” of Serbia (at that time the fry) “in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations”.63 The Court thus rejected the application of the criterion derived from the judgment of the icty Appeals Chamber in the Tadić case.64 It was not persuaded by the argument that the “overall control” test was “equally applicable under the law of State responsibility for the purpose of determining…when a State is responsible for acts committed by paramilitary units, armed forces which are not among its official organs”,65 as it was for determining whether or not an armed conflict is international. The Court noted the following: the ‘overall control’ test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing

62 63 64

65

Ibid., pp. 206–207, para. 396. Ibid., p. 208, para. 400. The Court observed that “the icty was not called upon in the Tadić case, nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction [was] criminal and extend[ed] over persons only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise of its jurisdiction…[T] he Court attache[d] the utmost importance to the factual and legal findings made by the icty in ruling on the criminal liability of the accused before it…The situation [was] not the same for positions adopted by the icty on issues of general international law which [did] not lie within the specific purview of its jurisdiction and, moreover, the resolution of which [was] not always necessary for deciding the criminal cases before it”, ibid., p. 209, para. 403. Ibid., p. 210, para. 404.

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the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State. Apart from these cases, a State’s responsibility can be incurred for acts committed by persons or groups of persons—­neither State organs nor to be equated with such organs—only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 [of the ilc Articles]. This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the ‘overall control’ test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.66 The Court also rejected the idea that the Genocide Convention, given the particular nature of the crime of genocide, called for the application of different criteria: The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ilc Articles on State Responsibility.67 66 67

Ibid., p. 210, para. 406. Ibid., pp. 208–209, para. 401. On the other hand, the Court had previously indicated that there was a higher standard of proof for allegations of genocide, stating, for example, that “claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive (cf. Corfu Channel (United Kingdom v. Albania), Judgment, i.c.j. Reports 1949, p. 17)”, ibid., p. 129, para. 209. Equally, it had not simply accepted “the Applicant’s contention that the very pattern of the atrocities committed over

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Circumstances Precluding Wrongfulness The fact that wrongful conduct is attributable to a State is not always sufficient to establish that State’s international responsibility. In Chapter v of its draft Articles on State Responsibility, the ilc identifies a series of circumstances “precluding wrongfulness”, namely, consent of the injured State (Art. 20), selfdefence (Art. 21), countermeasures (Art. 22), force majeure (Art. 23), distress (Art. 24) and necessity (Art. 25). These are circumstances which may provide an excuse for, or justify, the wrongful conduct of a State (and, in that sense, could be called circumstances “precluding responsibility”, rather than “precluding wrongfulness” of conduct as such). While such circumstances may provide States with a shield against the principal legal repercussions resulting from the engagement of their international responsibility, the ilc did not exclude certain consequences of invoking circumstances “precluding wrongfulness”, in particular, the duty to compensate for any material loss caused by the act (Art. 27 (b)). In its commentary, the ilc offered the following explanation: Although the Article uses the term ‘compensation’, it is not concerned with compensation within the framework of reparation for wrongful conduct, which is the subject of Article 34. Rather, it is concerned with the question whether a State relying on a circumstance precluding wrongfulness should nonetheless be expected to make good any material loss suffered by any State directly affected. The reference to ‘material loss’ is narrower than the concept of damage elsewhere in the articles: Article 27 concerns only the adjustment of losses that may occur when a party relies on a circumstance covered by Chapter v. Subparagraph (b) [of Article 27] is a proper condition, in certain cases, for allowing a State to rely on a circumstance precluding wrongfulness. Without the possibility of such recourse, the State whose conduct would otherwise be unlawful might seek to shift the burden of the defence of its many communities, over a lengthy period, focused on Bosnian Muslims and also Croats, demonstrate[d] the necessary intent…[According to the Court,] [t]he dolus specialis, the specific intent to destroy the group in whole or in part, ha[d] to be convincingly shown by reference to particular circumstances, unless a general plan to that end [could] be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent”, ibid. pp. 196–197, para. 373. This statement was challenged by Croatia in the case concerning the Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), but reaffirmed by the Court in its Judgment on that case, Judgment of 3 February 2015, i.c.j. Reports 2015, paras. 145–148.

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own interests or concerns onto an innocent third State. This principle was accepted by Hungary in invoking the plea of necessity in the GabčíkovoNagymaros Project case. As icj noted, ‘Hungary expressly acknowledged that, in any event, such a state of necessity would not exempt it from its duty to compensate its partner’ [i.c.j. Reports 1997, p. 39, para. 48]. Subparagraph (b) does not attempt to specify in what circumstances compensation should be payable. Generally, the range of possible situations covered by Chapter v is such that to lay down a detailed regime for compensation is not appropriate. It will be for the State invoking a circumstance precluding wrongfulness to agree with any affected States on the possibility and extent of compensation payable in a given case.68 The Court has confirmed the effect of the majority of these circumstances and defined the criteria to be fulfilled in order for them to be successfully invoked. It has ruled several times on the question of self-defence.69 In the case concerning Military and Paramilitary Activities in and against Nicaragua,70 the Court addressed comprehensively the rules of customary law concerning the prohibition of the use of force and the right of individual or collective self-­defence.71 It referred to the requirement that self-defence can only be exercised in response to an “armed attack” (French: “agression armée”), this having to be understood as meaning not only action by regular armed forces across an international border, but also the sending by a State, on a certain scale and with particular effects, of armed bands to the territory of another State.72 The Court also emphasized that the lawfulness of the use

68 69

70 71 72

Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 86. It is, however, questionable whether such an issue should be considered a matter of international State responsibility, since it falls within the purview of collective security, in accordance with “primary rules” established in the un Charter. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, pp. 70 and 102, paras. 126 and 193. Ibid., pp. 98–106, paras. 187–201. The Court referred to the description contained in the resolution of the General Assembly, Definition of Aggression, 3314 (xxix), Art. 3, para. (g), as expressing customary law, and saw no reason “to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such operation, 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”, ibid., p. 103, para. 195.

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of collective self-defence by a third State for the benefit of an attacked State depends on a request addressed by that State to the third State.73 The Court reached the conclusion that the circumstances in the case at hand did not justify the exercise of the right to collective self-defence by the United States. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,74 the Court recalled the conditions of necessity and proportionality to which the use of force is subject in the case of self-defence; it further recalled that, even if that use of force conforms to the jus ad bellum, it is only lawful if the “rules of international humanitarian law”, which constitute “intransgressible principles of customary international law”75 ( jus in bello), are also respected. In the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court considered that the right of self-defence provided for in Article 51 of the un Charter had no relevance with regard to the construction of the wall. In this respect, the Court noted that the right of self-defence is recognized in the case of an armed attack by one State against another State, whereas Israel did not claim that the attacks against it, justifying in its view the construction of the wall, were imputable to a foreign State.76 As regards consent, in its Advisory Opinion on the Customs Régime between Germany and Austria,77 the pcij considered that the fact that Austria had consented to the 1931 proposition of a German Customs Union did not preclude the wrongfulness of that Union’s conduct vis-à-vis the other parties to the Versailles Treaty.78 In the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) case, the icj noted that the Congo had consented to the deployment of Ugandan military forces on its territory, but

73 74 75 76

77 78

Ibid., p. 104, para. 196 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996 (I), p. 244, para. 38. Ibid., p. 257, para. 79. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 (I), p. 194, para. 139. See the reservations expressed by Judge Higgins regarding the fact that self-defence is available only when an armed attack is made by a State, ibid., p. 215, para. 33. Customs Régime between Germany and Austria, Advisory Opinion, 1931, p.c.i.j., Series A/B, No. 41, pp. 46 and 49. Germany was in effect under an obligation, by virtue of the Versailles Treaty, to respect Austrian independence. That obligation, which the Customs Union was found to be incompatible with, was due by Germany not only to Austria, but to all other States parties to the Treaty.

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made it clear that that consent had defined limits, which Uganda had failed to respect.79 The Gabčikovo-Nagymaros Project case80 provided the Court with an opportunity to consider countermeasures and necessity as circumstances precluding the wrongfulness of acts committed by both States parties to the dispute. The Court unequivocally accepted that a countermeasure “taken in response to a previous international wrongful act of another State and…directed against that State” could preclude the wrongfulness of a conduct that would otherwise have been unlawful, although ruled that, in this case, Slovakia’s conduct (namely, its unilateral assumption of control over the Danube, a shared resource) remained wrongful, because it failed to respect the essential condition of proportionality,81 i.e., “that the effects of a countermeasure must be commensurate with the injury suffered, taking into account the rights in question”.82 In the same case, the Court also found that “the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation”.83 In order to ascertain whether a state of necessity permitted Hungary to suspend and subsequently abandon the works it was obliged to carry out under the 1977 Treaty, the Court applied the criteria laid down in the ilc draft Articles on State Responsibility (1996). In that respect, the Court did find that the “following basic conditions set forth in Draft Article 33 [were] relevant”: [the state of necessity] must have been occasioned by an ‘essential interest’ of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a ‘grave and imminent peril’; the act being challenged must have been the ‘only means’ of safeguarding that interest; that act must not have ‘seriously impair[ed] an essential interest’ of the State towards which the obligation existed; and the State which is the author of that act must not have 79 80 81

82 83

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, pp. 198–199, para. 52. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, i.c.j. Reports 1997, p. 7. Ibid., pp. 55–56, para. 83. The Court referred, inter alia, to Arts. 47 to 50 of the draft Articles on State Responsibility, which had been adopted by the ilc on first reading; cf. Arts. 49 to 53 of the Articles adopted on second reading in 2001. Ibid., p. 56, para 85. Ibid., p. 40, para. 51. The Court observed that “such ground for precluding wrongfulness can only be accepted on an exceptional basis”, ibid.

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‘contributed to the occurrence of the state of necessity’. Those conditions reflect customary international law.84 In the case in question, the Court concluded that Hungary could not rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as several of the conditions had not been met.85 Nonetheless, it made important statements of a general nature concerning the notion of the “essential interest” of a State (which may potentially include ecological ­concerns for its natural environment),86 and the notion of “risk” as a distinct concept from “imminent peril”.87 Article 26 of the ilc Articles on State Responsibility imposes restrictions on the invocation of circumstances precluding wrongfulness. According to that Article, “[n]othing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law”. In other words, a State is not allowed to take countermeasures which conflict with a peremptory norm. An oft-cited example is that “genocide cannot justify counter-genocide”. The Court adopted a similar position in its Order on the admissibility of counter-claims in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), in which it affirmed that “in no case could one breach of the [Genocide] Convention serve as an excuse for another”.88 2

The Consequences of an Internationally Wrongful Act: The Content of State Responsibility

As previously stated, the evolution of the law on State responsibility has focused fairly intensively on the various legal consequences ensuing lato sensu

84 85

86 87 88

Ibid., pp. 40–41, para. 52. Ibid., pp. 41–46, paras. 53–58. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, pp. 194–195, para. 140. Ibid., p. 41, para. 53. Ibid., p. 42, para. 54. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997, i.c.j. Reports 1997, p. 258, para. 35.

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from an internationally wrongful act, rather than on the traditionally more limited obligation to make reparation arising out of an injury alone. Thus, Part Two of the ilc Articles, devoted to the “Content of the international responsibility of a State”, addresses a wide range of obligations arising for a State responsible of an internationally wrongful act. The most debated aspects of recent developments in this area of the law of State responsibility relate to the various types of legal relations to which an internationally wrongful act may give rise, between the responsible State and the injured State as well as between the wrongdoing State and other States, or even other subjects of international law.89 Reparation, Cessation and Non-repetition The obligation to make reparation for an injury is clearly the least disputable consequence of any internationally wrongful act, given that it is, in the words of the pcij—over and above a principle of international law—a “general conception of law”.90 The pcij also stated in the Factory at Chorzów case that the responsible State is under an obligation “to make reparation in an adequate form”.91 In the final phase of that case, it made the following well-known statement regarding the scope of this obligation: 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 would serve to determine the amount of compensation due for an act contrary to international law.92 The Permanent Court thus laid down the principle of “integral reparation” for an injury. This principle was later incorporated into Article 31 of the ilc

89 See Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, commentary to Part One, p. 33, paras. 3–5. 90 Factory at Chorzów, Merits, Judgment, No. 13, 1928, p.c.i.j., Series A, No. 17, p. 29. 91 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, p.c.i.j., Series A, No. 9, p. 21. 92 Factory at Chorzów, Merits, Judgment No. 13, 1928, p.c.i.j., Series A, No. 17, p. 47.

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Articles on State Responsibility. According to Article 31, paragraph 1, “[t]he ­responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act”; paragraph 2 of that same Article stipulates, for its part, that “[i]njury includes any damage, whether material or moral, caused by the internationally wrongful act of a State”. Reparation for an injury may take three forms, namely “restitution, compensation and satisfaction, either singly or in combination” (Art. 34). Restitution in natura (restitutio in integrum) may involve—to give but a few examples—the return of persons, property or territory belonging to the injured State. Whenever possible, this form of reparation shall prevail over the others.93 However, “[t]he primary obligation breached may also play an important role with respect to the form and extent of reparation”,94 in particular as regards restitution.95 In any event, as the Court observed in the case concerning Pulp Mills on the River Uruguay, “[l]ike other forms of reparation, restitution must be appropriate to the injury suffered, taking into account the nature of the wrongful act having caused it”.96 It concluded that, as Uruguay breached no substantive obligation (e.g., the obligation to contribute to the optimum and rational utilization of the river, to not impair the regime of the river or the quality of its water, etc.), but only procedural obligations (e.g. to notify the plans and consult with Argentina), “ordering the dismantling of the mill would not, in the view of the Court, constitute an appropriate remedy for the breach of procedural obligations”.97 As far as compensation is concerned, this should cover any financially assessable damage, that is to say damage that can be measured in financial terms, including loss of profits so far as this is established. Compensation may

93

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), pp. 103–104, para. 273; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, i.c.j. Reports 2010 (ii), p. 691, para. 161. 94 Commentary to Art. 34, Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 96, para. (3). 95 The ilc gives as an example the case “where what is involved is a procedural obligation conditioning the exercise of the substantive powers of a State. Restitution in such cases should not give the injured State more than it would have been entitled to if the obligation had been performed”, ibid. See LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 514, para. 125. 96 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), p. 104, para. 274. 97 Ibid., para. 275.

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be claimed in respect of damage incurred directly by the State (to its property or officials, for example), and in respect of damage incurred by the injured State through one of its nationals (private persons and companies; on diplomatic protection see infra, Sec. 3).98 Satisfaction is the third, and subsidiary, form of reparation “for…injury caused by [an internationally wrongful] act insofar as it cannot be made good by restitution or compensation”.99 In international law, “satisfaction” is traditionally considered to be an adequate means of reparation for moral injuries. According to the ilc, “[s]atisfaction…is the remedy for those injuries, not financially assessable, which amount to an affront to the State. These injuries are frequently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences”.100 A declaration by the Court that one State has failed to comply with its obligation thus often constitutes an appropriate form of reparation.101 The Court has found that the incurring of responsibility by a State does not relieve it of the obligation it has breached, or, in the words of the ilc, a State’s international responsibility and the ensuing legal consequences “do not affect the continued duty of the responsible State to perform the obligation breached”.102 In addition to this ongoing duty to perform its obligations, the responsible State has a duty to cease any internationally wrongful act, if it is continuing at the time of the judgment, and may be requested to “offer appropriate assurances and guarantees of non-repetition, if circumstances so 98

The Court has determined the nature and amount of compensation owed by a State in two cases, the Corfu Channel case (supra, note 40, chapter 3 and the case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, i.c.j. Reports 2012 (I), p. 324. 99 Art. 37, para. 1, of the ilc Articles on State Responsibility. 100 Commentary to Art. 37, Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 106, para. (3). 101 Corfu Channel (United Kingdom v. Albania), Judgment, i.c.j. Reports 1949, p. 36; LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 508, para. 116; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), p. 234, para. 463; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, i.c.j. Reports 2008, p. 245, para. 204; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), p. 102, para. 269; Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment, i.c.j. Reports 2011, p. 692, para. 168. 102 See Art. 30.

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require”.103 The ilc chose to distinguish between reparation, on the one hand, and the other legal consequences of an internationally wrongful act—namely, cessation and assurances and guarantees of non-repetition104—on the other. The Court has not closely adhered to that distinction. With respect to cessation, the Court observed in the case concerning the Dispute regarding Navigational and Related Rights that “the cessation of a violation of a continuing character and the consequent restoration of the legal situation constitute a form of reparation for the injured State”.105 The case concerning United States Diplomatic and Consular Staff in Tehran is a well-known example of a situation in which the Court found that a State was under an obligation to cease an internationally wrongful act, continuing at the time of the Judgment. It decided, inter alia, that Iran was obliged to “terminate the unlawful detention of the United States Chargé d’affaires and other diplomatic and consular staff and other United States nationals…held hostage in Iran, and must immediately release each and every one and entrust them to the protecting Power”.106 In practice, therefore, the cessation of the wrongful act may correspond to a form of restitution, since it is aimed at restoring the situation as it existed prior to the wrongful act. In this connection, the Court has expressed reluctance to formally recall the obligation of cessation, except in special circumstances: [I]t should be recalled that when the Court has found that the conduct of a State is of a wrongful nature, and in the event that this conduct persists on the date of the judgment, the State concerned is obliged to cease it immediately. This obligation to cease wrongful conduct derives both from the general obligation of each State to conduct itself in accordance with international law and from the specific obligation upon States parties

103 Art. 30, para. 2, of the ilc Articles on State Responsibility. As this Article makes clear, assurances and guarantees of non-repetition do not constitute automatic consequences of any internationally wrongful act. 104 See Arts. 30 and 31 of the ilc Articles on State Responsibility. 105 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, i.c.j. Reports 2009, p. 267, para. 149; emphasis added. 106 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, i.c.j. Reports 1980, p. 44, para. 95. See also Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, i.c.j. Reports 2012 (I), pp. 154–156, para. 139; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012, pp. 462–463, para. 122.

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to disputes before the Court to comply with its judgments, pursuant to Article 59 of its Statute. It is not necessary, and it serves no useful purpose as a general rule, for the Court to recall the existence of this obligation in the operative paragraphs of the judgments it renders: the obligation incumbent on the State concerned to cease such conduct derives by operation of law from the very fact that the Court establishes the existence of a violation of a continuing character. The Court may consider it appropriate, in special circumstances, to mention that obligation expressly in the operative part of its judgment. It sees no particular reason to do so in the present case.107 With respect to assurances and guarantees of non-repetition, the Court’s decision in the LaGrand case confirmed the possibility that a State may be required to offer such assurances of non-repetition, as envisaged by the ilc Articles, even though the Court made no mention of the ilc’s work on that subject in its Judgment, nor gave any explanation of the applicable criteria.108 It has indicated that “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”.109 It has thus implicitly held that assurances and guarantees of non-repetition form part of the reparation lato sensu, rather than autonomous “consequences” of an internationally wrongful act. It will be recalled that, in its 2001 Judgment, the Court found that the United States had violated the 1963 Vienna Convention on Consular Relations, inter alia because it had failed to satisfy its obligation, under Article 36 of that Convention, to give appropriate consular information to foreign nationals in custody (who were later convicted of murder and sentenced to death). Germany sought to obtain an “assurance that the United States w[ould] not repeat its unlawful acts”,110 as well as a declaration by the Court that, should German nationals be sentenced to severe penalties, without their rights 107 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, i.c.j. Reports 2009, p. 267, para. 148. 108 LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, pp. 508–514, paras. 117–127. 109 LaGrand (Germany v. United States of America), Judgment, i.c.j. Reports 2001, p. 485, para. 48. The Court refers here to its Judgment in the case concerning the Factory at Chorzów, see Sec. 2. 110 Ibid., pp. 510–511, para. 120.

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under Article 36, paragraph 1 (b) of the Convention having been respected, the United States had to allow for the effective review of those criminal convictions and provide remedies for any violation of rights under Article 36. The Court considered the information provided to it by the United States regarding the measures taken by that State in order to prevent new violations of the requirement of consular notification under Article 36 of the Vienna Convention. Those measures consisted, inter alia, of the publication of brochures containing instructions to federal and local officials, the organization of training programmes for government officials of all levels and the creation of a permanent office within the State Department to focus on United States and foreign compliance with consular notification and access requirements. The Court decided that, “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”.111 It thus considered that the “commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36 … [of the Vienna Convention] [had to] be regarded as meeting Germany’s request for a general assurance of non-repetition”.112 As regards the other assurances sought by Germany, the Court considered that: if the United States…should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.113 The Court reached similar conclusions in the Avena case.114 Since then, States have often asked the Court to declare that a responsible State must offer

111 112 113 114

Ibid., pp. 512–513, para. 124. Ibidem. Ibid., pp. 513–514, para. 125. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, i.c.j. Reports 2004 (I), p. 72.

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assurances and guarantees of non-repetition. The Court, however, has indicated that such assurances and guarantees are not automatic consequences of any wrongful act; rather that they constitute an exceptional remedy. In its Judgment in the Pulp Mills on the River Uruguay case, the Court specified, in response to Argentina’s request for the Court to adjudge and declare that Uruguay should provide adequate guarantees of non-repetition, that, “while the Court may order, as it has done in the past, a State responsible for internationally wrongful conduct to provide the injured State with assurances and guarantees of non-repetition, it will only do so if the circumstances so warrant, which it is for the Court to assess”.115 In this particular case, however, the Court did not identify any special circumstances which would have required it to order a measure such as that sought by Argentina.116 As already mentioned, despite the fact that the ilc Articles on State Responsibility consider cessation and non-repetition (Art. 30) to be distinct from reparation itself (Art. 31), the Court’s case law demonstrates that it may be difficult, in practice, to establish a clear-cut distinction in these matters.

Other Legal Consequences of the Breach of Obligations of a Particular Character (Obligations erga omnes and Obligations under Peremptory Norms of General International Law) Beyond the general consequences arising for a State from its international wrongful act, irrespective of the nature or character of the primary rule breached, specific consequences may ensue from the breach of particular norms or obligations. Two categories of such norms have progressively been identified under international law, namely the “peremptory norms of general international law” (jus cogens) and the obligations owed by States to the international community as a whole (or obligations erga omnes). Jus cogens refers to obligations to which no derogation is permitted pursuant to Articles 53 and 64 of the 1969 Vienna

115 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), p. 105, para. 278: “As a general rule, there is no reason to suppose that a State whose act or conduct has been declared wrongful by the Court will repeat that act or conduct in the future, since its good faith must be presumed…There is thus no reason, except in special circumstances…to order [the provision of assurances and guarantees of non-repetition]”; emphasis added. See also Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, i.c.j. Reports 2009, p. 267, para. 150. 116 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010 (I), pp. 104–105, paras. 277–278.

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Convention on the Law of Treaties.117 While several references were made in Court’s decisions to such concepts as norms of jus cogens,118 or “intransgressible principles of customary international law”,119 it was only later on that the Court acknowledged, in an express and formal manner, the existence of peremptory norms of general international law (jus cogens).120 Obligations erga omnes, whose existence in positive international law was affirmed by the Court in 1970, are characterized by the fact that, “[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection”.121 Some obligations may be referred to both as obligations erga omnes and obligations arising under norms of jus cogens.122 However, it is widely accepted 117 See the examples of rules of jus cogens given in the ilc commentary to the draft articles on the law of treaties, Yearbook of the International Law Commission, 1966, vol. ii, p. 248. 118 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, i.c.j. Reports 1986, pp. 100–101, para. 190; the Court, without formally endorsing this characterization, referred to frequent statements by States representatives according to whom the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations was not only a principle of customary international law “but also a fundamental or cardinal principle of such law”, and to the ilc’s work on the codification on the law of treaties, which expressed the view that this rule constitutes a conspicuous example of a rule having the character of jus cogens. In the cases concerning the North Sea Continental Shelf, the Court refrained from “enter[ing] into, still less pronounc[ing] upon any question of jus cogens”, in observing that “it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties”, Judgment, i.c.j. Reports 1969, p. 42, para. 72. 119 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996 (I), p. 257, para. 79. 120 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 2006, p. 32, para. 64 (with regard to the prohibition of genocide); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), p. 111, para. 161 (idem); Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012 (ii), p. 457, para. 99 (with regard to the prohibition of torture). 121 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, i.c.j. Reports 1970, p. 32, para. 33. 122 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007 (I), p. 104, para. 147. See for examples of obligations erga omnes which could also have been characterized as obligations arising under peremptory norms of international law

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that obligations erga omnes (or obligations owed by States to the international community as a whole) and obligations under peremptory norms of general international law (or jus cogens) do not serve the same purposes. The notion of norms or obligations erga omnes relates mainly to the question of the legal interest of States other than the injured State in compliance with such norms, a matter which will be briefly addressed when considering the implementation of State responsibility before the Court.123 The qualification of peremptory norms of general international law (jus cogens) is relevant as a matter of treaty law, insofar as such norms cannot be derogated from by treaty, and for the additional consequences potentially involved, in terms both of the legal interest of States other than the injured State in invoking such norms and of the content of the responsibility of the State, whenever obligations under such norms are breached.124 According to the ilc’s Articles, “serious breaches of obligations under peremptory norms of international law” attract particular consequences, including the duty for all States to cooperate to bring to an end these breaches, and the prohibition for those States to recognize as lawful the situation created by the breaches or to render aid or assistance in maintaining that situation.125 (jus cogens), Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, i.c.j. Reports 1970, p. 32, para. 34: “Such obligation derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”. Further references to obligations and rights erga omnes were made by the Court in the following cases and advisory opinions: East Timor (Portugal v. Australia), Preliminary Objections, Judgment, i.c.j. Reports 1995, p. 102, para. 29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, i.c.j. Reports 1996 (ii), p. 616, para. 31; Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 (I), pp. 172, para. 88, and 199, para. 155; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 2006, pp. 31–32, para. 64. 123 Infra, Sect. 3. 124 General commentary to Part ii, Chapter iii, (Serious breaches of obligations under peremptory norms of general international law), of the Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 112, para. 7. 125 Article 41 of the Articles reads as follows: Particular consequences of a serious breach of an obligation under this chapter: 1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40.

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To date, the Court has not pronounced itself explicitly on the customary nature of such consequences of serious breaches of jus cogens. The Court sometimes indicated specific consequences of the breach of obligations erga omnes, which might be considered to be equivalent to those just referred to in the context of serious breaches of obligations under peremptory norms.126 In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, the Court relied on the character erga omnes of obligations and rights breached by the construction of the wall,127 and affirmed: Given the character and the importance of the rights and obligations involved,…all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory…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.128 As regards the existence of an obligation of non-recognition of situations resulting from a serious breach of a peremptory norm, the ilc based itself, inter



2. No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation. 3. This Article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law. 126 See the separate opinion appended by Judge Kooijmans to the Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, i.c.j. Reports 2004 (I), pp. 230 et s. 127 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 (I), p. 199, para. 155 (i.e. “the obligation to respect the right of the Palestinian people to self-determination, and certain of [Israel’s] obligations under international humanitarian law”). 128 Ibid., p. 200, para. 159. The Court was also 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 regime, taking due account of the present Advisory Opinion”, id., para. 160.

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alia, on the Court’s Advisory Opinion of 21 June 1971 in the Namibia (South West Africa) proceedings, in which the Court stated that “the termination of the mandate and the declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law”,129 namely the denial by a State of the right of self-determination of peoples.130 3

The Implementation of State Responsibility before the Court

States are free to settle disputes between them concerning issues of responsibility by any peaceful and amicable means available. In practice, many such disputes are resolved by way of agreements, without any third party intervention. In such cases, States are free to disregard the rules of international law on State responsibility (except peremptory norms, if applicable), and the settlement may be the result of very diverse practical and political considerations. The different ways in which the international responsibility of a State may be implemented before the Court are heavily dependent on the nature of the primary obligations breached and on the kind of injury suffered as a result of the breach. Following the celebrated dictum of the Court in the Barcelona Traction case,131 and for the purpose of presenting some of the main legal issues involved, a distinction can be drawn between the claims brought on the basis of obligations owed towards a particular State (like those in the field of diplomatic protection), and claims brought on the basis of obligations owed towards a plurality of States (in the context of multilateral conventions) or even to the international community as a whole. The Definition of Diplomatic Protection According to the famous dictum of the Permanent Court, [i]t is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law 129 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, Judgment, i.c.j. Reports 1971, p. 56, para. 126. 130 Commentary to Article 41, Yearbook of the International Law Commission, 2001, vol. ii, Part ii, p. 115, para. 8. 131 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, i.c.j. Reports 1970, p. 32, para. 33.

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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 right, the right to ensure, in the person of its subjects, respect for the rules of international law.132 This traditional definition of the mechanism of diplomatic protection has recently triggered much debate, in particular in view of the contention that it would be old fashioned and no longer fit with the situation of individuals at international level, who are direct bearers of rights under international law. Indeed, for as long as international law was concerned exclusively with the legal relationships between sovereign States (thus excluding individuals), the internationally wrongful act of a State could not incur the latter’s international responsibility vis-à-vis any individuals who had suffered an injury as a consequence of that act. Diplomatic protection was therefore an irreplaceable tool allowing a State, whose national had suffered such injury, to seek reparation directly from the State responsible; it was to place subjects of international law on an equal footing and to prevent “victims” from being denied justice.133 Accordingly, the rules governing the exercise of diplomatic protection, drawn up on the basis of nineteenth and early twentieth century arbitral jurisprudence, reflected to a large extent the then purely inter-State nature of international law. For example, the exercise of diplomatic protection by the State has typically been considered as an act falling entirely within its discretion, since the individual “victim” of the internationally wrongful act has no means, as of right, to force his national State to take, on his behalf, diplomatic or judicial action against the alleged responsible State.134 Likewise, reparation for the 132 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, p.c.i.j., Series A, No. 2, p. 12. 133 These goals were, however, sometimes removed from the reality. Historically, diplomatic protection appears to have been an instrument in the hands of the most powerful States, see Ch. de Visscher, Théories et réalités en droit international public, Pedone, Paris, 1960, pp. 341–343. On so-called “Dollar diplomacy”, see Ph. Jessup, A Modern Law of Nations, MacMillan, New York, 1946, p. 96. 134 See Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, i.c.j. Reports 1970, p. 44, para. 79: “The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a

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internationally wrongful act, although based on the damage or injury suffered by the individual, has traditionally been considered as owed only to the State of nationality.135 In summary, the régime of diplomatic protection has been described as being founded upon a “fiction” devised as a (in this respect, useful) means of overcoming the lack of legal personality accorded to individuals at an international level. As already suggested, it has recently been criticized for being at variance with the progressive recognition of individuals as direct subjects of international law, capable of exercising themselves their rights on the international plane (for example, in the field of human rights (regional courts) or foreign investments (mixed arbitrations)). The results of the ilc’s codification nevertheless proved that diplomatic protection has not lost its raison d’être and remains a unique means of implementing State responsibility. Indeed, the growing number of opportunities for individuals to bring claims before international courts and tribunals does not render entirely useless the possibility for States (and the individuals concerned) to avail themselves of more traditional means of implementing another State’s responsibility. Nonetheless, a number of rules governing the exercise of diplomatic protection have been the subject of renewed discussions concerning, in particular, the enhancement of the role of individuals in implementing State responsibility.

political or other nature, unrelated to the particular case. Since the claim of the State is not identical with that of the individual or corporate person whose cause is espoused, the State enjoys complete freedom of action.” According to paras. (a) and (b) of Art. 19 of the 2006 ilc Draft Articles on Diplomatic Protection (hereinafter “ILC Articles on Diplomatic Protection”), entitled “Recommended practice”, “[a] State entitled to exercise diplomatic p ­ rotection…should give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred; [and] take into account, wherever feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought”. 135 See Factory at Chorzów. See, in comparison, however, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, i.c.j. Reports 2012 (I), p. 344, para. 57, in which the Court “recalls that the sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury”. According to the “recommended practice” set out in Art. 19 (c) of the ilc Articles on Diplomatic Protection a State entitled to exercise diplomatic protection “should…transfer to the injured person any compensation obtained for the injury from the responsible State subject to any reasonable deductions”.

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The classical definition of diplomatic protection is, by and large, still current at the beginning of the twenty-first century. According to Article 1 of the ilc Articles on Diplomatic Protection: For the purposes of the present draft articles, diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.136 The Court has described this definition as reflecting customary international law.137 Furthermore, it has emphasized that: Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights.138 The Court has made a significant contribution to the development of the law on diplomatic protection. The impact of its case law on the formulation of the general principles governing this means of implementing State responsibility can be seen in the ilc Articles of 2006. The exercise of diplomatic protection by means of international judicial proceedings is subject to two main conditions. The individual or juridical person concerned must possess the nationality of the State which takes up the case on his/its behalf. Furthermore, all local remedies available must have been exhausted before any action is taken at international level. These two conditions raise a number of questions which will be briefly addressed in turn. 136 Draft Articles on Diplomatic Protection adopted by the ilc at its Fifty-eighth Session (2006), Yearbook of the International Law Commission, 2006, vol. ii, Part. ii, pp. 25–55 (text of the draft articles with commentaries thereto). The General Assembly welcomed the conclusion of the work of the ilc on this topic in its resolution 62/67 (2007), and commended the articles on diplomatic protection, the text of which was annexed to this resolution. 137 Ahmadou Sadio Diallo, Preliminary Objections, Judgment, i.c.j. Reports 2007 (ii), p. 599, para. 39. 138 Ibidem.

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Protection by the State of Nationality According to the Permanent Court, “the bond of nationality between the State and the individual alone confers upon the State the right of diplomatic protection”.139 Although there is no proper equivalent to the nationality of individuals for juridical persons, such as companies and associations, it is widely considered that a similar link is required under customary international law in order for a State to exercise diplomatic protection in favour of such private entities. Both questions have been addressed by the Court on numerous occasions. (a) Nationality of Natural Persons In the Nottebohm case, the Court stated that the individual involved must possess the nationality of the State exercising diplomatic protection and must have a genuine connection with that State. That second requirement was not accepted by the ilc in the course of its work on the codification of the rules on diplomatic protection. In the above-mentioned case, the Court declared Liechtenstein’s Application to be inadmissible because of the lack of any genuine connection between the individual concerned and that State. Mr. Nottebohm was a German subject who had been living in Guatemala since 1905 and who had obtained Liechtenstein nationality in October 1939, just over a month after the outbreak of the Second World War and the attack on Poland by Germany. Liechtenstein took up the case on behalf of Mr. Nottebohm, alleging that, in view of the measures taken in relation to the latter (considered by Guatemala as an enemy national) and his property, Guatemala had violated rules of international law. Liechtenstein blamed Guatemala, inter alia, for the arrest, detainment, internment and expulsion of Mr. Nottebohm, and for the sequestration and confiscation of his property. Guatemala contested the admissibility of the Application, arguing that Liechtenstein could not exercise diplomatic protection in favour of Mr. Nottebohm. It contended that Mr. Nottebohm had not acquired Liechtenstein nationality in accordance with the latter’s internal law, or in accordance with the general principles of international law concerning nationality. Furthermore, Guatemala alleged that Mr. Nottebohm had, in any event, fraudulently requested Liechtenstein nationality, in particular, “with the mere goal to obtain the status of a neutral subject before returning to Guatemala and without a sincere desire to establish a real connection between the Principality and himself”.140

139 Panevezys-Saldutiskis Railway, Judgment, 1939, p.c.i.j., Series A/B, No. 76, p. 16. 140 i.c.j. Pleadings, Nottebohm Case (Liechtenstein v. Guatemala), vol. ii, p. 380.

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The Court stated that a distinction had to be made between conferring nationality on an individual, which is within the national competence of every State, and the opposability of such attribution, relevant for the exercise of diplomatic protection, which is a matter of international law.141 In its own words: It is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality, and to confer that nationality by naturalization granted by its own organs in accordance with that legislation. It is not necessary to determine whether international law imposes any limitations on its freedom of decision in this domain. Furthermore, nationality has its most immediate, its most far-reaching and, for most people, its only effects within the legal system of the State conferring it. Nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals. This implied in the wider concept that nationality is within the domestic jurisdiction of the State. But the issue which the Court must decide is not one which pertains to the legal system of Liechtenstein. It does not depend on the law or on the decision of Liechtenstein whether that State is entitled to exercise its protection, in the case under consideration. To exercise protection, to apply to the Court, is to place oneself on the plane of international law. It is international law which determines whether a State is entitled to exercise protection and to seise the Court.142 The Court did not consider it appropriate to ascertain whether Liechtenstein nationality had been conferred upon Mr. Nottebohm in compliance with the

141 The pcij had previously stated, in its Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco, that, “in the [then current] state of international law, questions of nationality [were]…in principle within the reserved domain” (Advisory Opinion, 1923, p.c.i.j., Series B, No. 4, p. 24). This principle was confirmed by the first Article of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law, which read as follows: “It is for each State to determine under its own law who are its nationals” (League of Nations, Treaty Series, Vol. 179, p. 89). The same principle was later on included in the 1997 European Convention on Nationality (United Nations, Treaty Series, Vol. 2135, p. 213). But see also infra, text corresponding to notes 150–151. 142 Nottebohm (Liechtenstein v. Guatemala), Second Phase, Judgment, i.c.j. Reports 1955, pp. 20–21.

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national rules of that State relating to the attribution of nationality. On the other hand, it did consider that it was its task to determine if that internal act had produced the desired international effect, namely, if it was opposable to Guatemala. According to the Court, nationality only provides a title for a State to exercise diplomatic protection if it evidences the existence of an authentic connection between the individual and the State which confers its nationality. The link between the individual and the State has to be sufficiently close, so preponderant in relation to any connection which may have existed between him and any other State, that it is possible to regard the nationality conferred upon him as real and effective, as the exact juridical expression of a social fact of a connection which existed previously or came into existence thereafter.143 The Court concluded that Mr. Nottebohm’s naturalization had not been requested “for the purpose of obtaining a legal recognition of Nottebohm’s membership in fact in the population of Liechtenstein”.144 The sole purpose of that naturalization was to allow Mr. Nottebohm to obtain the status of a neutral subject in times of war. The Court thus concluded that Liechtenstein did not have the power to exercise diplomatic protection in favour of Mr. Nottebohm, and that, consequently, its Application was inadmissible. As previously stated, the criterion of effective nationality was not upheld by the ilc in its Articles on Diplomatic Protection.145 It follows from the commentary to Article 4146 that, contrary to the Court’s position in the Nottebohm case, this provision does “not require a State to prove an effective or genuine link between itself and its national…as an additional factor for the 143 Ibid., p. 24. 144 Ibid., p. 26. 145 The criterion of effective nationality had, nonetheless, been applied by several courts and tribunals, after the Nottebohm Judgment, in the case of double nationality. The IranUnited States Claims Tribunal expressly referred to the Nottebohm Judgment in order to apply the theory of the dominant or effective nationality. It explained that the dominant or effective nationality could be determined by taking account of several factors, such as habitual residence, family ties or participation in public life (Iran-United States Claims Tribunal, Case No. A/18, 5 IRAN-US C.T.R., 1984, pp. 251–353). 146 Art. 4: “For the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States, or in any other manner, not inconsistent with international law.” (Articles on Diplomatic Protection with commentaries, Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, p. 30.)

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exercise of diplomatic protection, even where the national possesses only one nationality”.147 The ilc explained that certain factors [had] served to limit Nottebohm to the facts of the case in question, particularly the fact that the ties between Mr. Nottebohm and Liechtenstein (the Applicant State) were ‘extremely tenuous’ compared with the close ties between Mr. Nottebohm and Guatemala (the Respondent State) for a period of over 34 years, which led the International Court of Justice to repeatedly assert that Liechtenstein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala’.148 The ilc concluded that the Court did not intend to expound a general rule applicable to all States but only a relative rule according to which a State in Liechtenstein’s position was required to show a genuine link between itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala with whom he had extremely close ties.149 Thus, the general principle, according to the Commission, is that the attribution of nationality suffices to render it opposable towards other States. However, the ilc added that the acquisition of nationality, although it is a matter which is for each State to decide in accordance with its domestic law, must not be “inconsistent with international law”.150 The ilc thus intended to stress that “the right [of a State] to decide who are its nationals (…) is not absolute”, and referred in this respect to limits imposed upon States by international conventions, international custom and general principles of law with regard to nationality, as well as by conventions in the field of human rights requiring States to comply with international standards in the granting of nationality.151 (b) Nationality of Legal Persons In the Barcelona Traction case, the Court stated that international law “attributes the right of diplomatic protection of a corporate entity to the State under 147 148 149 150 151

Articles on Diplomatic Protection with commentaries, Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, pp. 29–30. Ibid., p. 30. Ibidem. Supra note 146. Commentary to Article 4, paras. 6–7, Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, p. 30.

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the laws of which it is incorporated and in whose territory it has its registered office”.152 It considered, moreover, that there has to be a close and permanent connection between the State exercising diplomatic protection and the corporation in question.153 In that case, the Belgian State, as Applicant, sought to obtain recognition by the Court of the damage suffered by Belgian nationals, shareholders of the Canadian corporation Barcelona Traction, on account of wrongful acts allegedly committed by the Spanish State. The Spanish government raised several objections to the admissibility of the claims made by the Belgian government, including the lack of any right by the Applicant to exercise diplomatic protection in that case. The Court upheld that objection on the ground that the measures complained of had been directed at Barcelona Traction as such and not at its Belgian shareholders. The Court found Canada to be the State having the capacity to act in the name and on behalf of Barcelona Traction. It pointed out that the company had been incorporated in Canada for more than 50 years and had its registered office, its administration and its register of shareholders in that country. The Court further noted that the meetings of the administrative body had been held in Canada for many years, that the corporation appeared in the records of the Canadian tax authorities and that Barcelona Traction’s Canadian nationality had been recognized by other States.154 Finally, the Court observed that, since the said corporation had been founded in Canada and had remained under that law for a period of over 50 years, a “close and permanent” link had been established between Canada and Barcelona Traction. “Barcelona Traction’s links with Canada [were] thus manifold”.155 The Court’s decision in the Barcelona Traction case clearly influenced the work of the ilc regarding the diplomatic protection of legal persons. Article 9 of the ilc156 allows diplomatic protection to be extended to legal persons, 152 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, i.c.j. Reports 1970, p. 42, para. 70. 153 This criterion recalls the “effective connection” relied upon by the Court in the Nottebohm case. The Court, however, recognized that “in the particular field of diplomatic protection of corporate entities, no absolute test of the ‘genuine connection’ ha[d] found general acceptance” (ibid.). 154 Ibid., pp. 42–44, paras. 71–76. 155 Ibid., p. 42, para. 71. 156 Art. 9: “For the purposes of the diplomatic protection of a corporation, the State of nationality means the State under whose law the corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and has no substantial business activities in the State of incorporation, and the seat of management

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subject to specific criteria concerning the condition of nationality. In the commentary to that provision, the ilc reiterated the two conditions identified by the Court in order for corporations to be regarded as having the nationality of a particular State, and consequently to be able to enjoy diplomatic protection from that State. The ilc considered that “[a]s the laws of most States require a company incorporated under its laws to maintain a registered office in its territory,…incorporation is the most important criterion for the purposes of diplomatic protection”.157 The Commission consequently underlined that “Draft Article 9 accepts the basic premise of Barcelona Traction that it is incorporation that confers nationality on a corporation for the purposes of diplomatic protection”.158 It pointed out, though, that when the circumstances indicate that the corporation has a closer connection with another State, “a State in which the seat of management and financial control are situated, that State shall be regarded as the State of nationality with the right to exercise diplomatic protection”.159 The ilc also upheld the conclusion reached by the Court in the Barcelona Traction case that, as a matter of principle, a State cannot legally exercise diplomatic protection in favour of shareholders of its nationality, when the latter are not the direct victims of the internationally wrongful act: “[t]he most fundamental principle of the diplomatic protection of corporations is that a corporation is to be protected by the State of nationality of the corporation and not by the State or States of nationality of the shareholders in a corporation”,160 even if their interests are affected.161 The Court did however consider that the State of which the shareholders are nationals might exercise its diplomatic protection in their favour, although the damage was suffered by the company, in two exceptional situations: if the corporation in question has ceased to exist

157 158 159 160 161

and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality.” Commentary to Art. 9, Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, p. 38. Ibidem. Ibidem. Ibidem. Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, i.c.j. Reports 1970, i.c.j. Reports 1970, p. 36, para. 46: “Not a mere interest affected, but solely a right infringed involves responsibility, so that an act directed against and infringing only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected”; see also Ahmadou Sadio Diallo, Preliminary Objections, Judgment, i.c.j. Reports 2007 (ii), p. 614, para. 86.

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within the country in which it was incorporated,162 or if the State in which the corporation is incorporated is itself responsible for the damage to the corporation, and the only remedy for the shareholders is to rely on the protection of their State of nationality.163 Nevertheless, with regard to the latter exception, the Court refrained from pronouncing on the “validity of this theory”, based on considerations of equity, and which was not applicable to the case at hand anyway.164 The ilc acknowledged the existence of such exceptions in paragraphs (a) and (b) of Article 11.165 It noted that, while the second exception had been the object of State and arbitral practice, the first was attributable exclusively to the icj. In this respect, the Commission noted the following: Before the Barcelona Traction case the weight of authority favoured a less stringent test, one that permitted intervention on behalf of shareholders when the company was ‘practically defunct’. The Court in Barcelona Traction, however, set a higher threshold for determining the demise of a company…The Court stated: ‘Only in the event of the legal demise of the company are the shareholders deprived of the possibility of a remedy available through the company’.166 The Court returned to the second exception more recently, in the case concerning Ahmadou Sadio Diallo.167 It stated that, having examined the “decisions of 162 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, i.c.j. Reports 1970, pp. 40–41, paras. 65–68. 163 Ibid., p. 48, para. 92. 164 Ibidem. 165 Art. 11: “The State of nationality of shareholders in a corporation shall not be entitled to exercise diplomatic protection in respect of such shareholders in the case of an injury to the corporation unless: (a) The corporation has ceased to exist according to the law of the State of incorporation for a reason unrelated to the injury; or (b) The corporation had, at the date of injury, the nationality of the State alleged to be responsible for causing the injury, and incorporation in that State was required by it as a precondition for doing business there”. 166 Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, p. 40. 167 This case arose out of a dispute between the Republic of Guinea and the Democratic Republic of the Congo, concerning grave violations of international law allegedly committed by the drc against a Guinean national, Mr. Diallo. In its Application, Guinea contended that Mr. Diallo had been “unjustly imprisoned by the authorities of the Democratic Republic of the Congo…despoiled of his sizable investments, businesses, movable and immovable property and bank accounts, and then expelled from the country”

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international courts and tribunals in respect of diplomatic protection of associés and shareholders, [the Court was] of the opinion that these [decisions did] not reveal—at least at the…time—an exception in customary international law allowing for protection by substitution”,168 namely, a “protection [offered] to the foreign shareholders of a company who could not rely on the benefit of an international treaty and to whom no other remedy [was] available, the allegedly unlawful acts having been committed against the company by the State of its nationality”.169 The Court did not rule on the customary character of the “rule of protection by limited substitution”, formulated in paragraph (b) of Article 11 of the ilc Articles on Diplomatic Protection, intended to apply only where a company’s incorporation, in the State having committed the alleged violation of international law, “was required by [that State] as a precondition for doing business there”.170 Indeed, this question was not relevant, since the situation contemplated by that Article did not appear to correspond to the one being addressed by the Court.171 The ilc upheld the Court’s conclusions in the Barcelona Traction case that diplomatic protection may be exercised by the State of nationality of a company’s shareholders when their direct rights are affected. The Court had the following to say on the issue:

168 169 170 171

(Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Application instituting proceedings filed in the Registry of the Court on 28 December 1998, p. 3). Moreover, his expulsion was alleged to have occurred at a time when Mr. Diallo “was taking proceedings to recover substantial debts owed to his businesses by the [Congolese] State and by the oil companies established on its territory and of which the said State [was] a shareholder” (ibid.). The drc raised preliminary objections concerning the admissibility of Guinea’s claims. It argued, first, that Guinea had no capacity to exercise diplomatic protection in the case, because the Application concerned, in principle, the reparation of damages resulting from the purported violation of the rights of Congolese corporations. Secondly, the Respondent maintained that, in any case, neither the corporations nor Mr. Diallo had exhausted the available domestic remedies in the drc. In its Judgment on preliminary objections, the Court ruled that the Application was admissible inasmuch as it concerned the protection of the rights of Mr. Diallo, as an individual, and the protection of his direct rights, as an associé, see Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, i.c.j. Reports 2007(ii), p. 607, para. 67. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, i.c.j. Reports 2007 (ii), p. 615, para. 89. Ibid., pp. 614–615, para. 88. Ibid., p. 615, para. 91. Ibid., pp. 615–616, paras. 92–93.

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an act directed against and infringing only the company’s rights does not involve responsibility towards the shareholders, even if their interests are affected. .......................................................................................................................................... The situation is different if the act complained of is aimed at the direct rights of the shareholder as such. It is well known that there are rights which municipal law confers upon the latter distinct from those of the company, including the right to any declared dividend, the right to attend and vote at general meetings, the right to share in the residual assets of the company on liquidation. Whenever one of his direct rights is infringed, the shareholder has an independent right of action.172 The ilc included the idea of protection for the direct rights of shareholders in Article 12173 of its Articles on Diplomatic Protection. The Court itself applied this rule in the Ahmadou Sadio Diallo case. It stated that “diplomatic protection of the direct rights of associés of an sprl [Société privée à responsabilité limitée] or shareholders of a public limited company is not to be regarded as an exception to the general legal régime of diplomatic protection for natural or legal persons, as derived from customary international law”.174 In practice, the exercise of diplomatic protection by a State in favour of a natural or legal person, having its nationality, whether an individual, an associé, a shareholder or a company, “seeks to engage the responsibility of another State for an injury caused to that person by an internationally wrongful act committed by that State”.175 What amounts to the internationally wrongful act, in case of an associé or a shareholder, “is the violation by the respondent State of [his] direct rights in relation to a legal person, direct rights that are defined by the domestic law of that State”.176 In this case, the Court decided that Guinea did indeed have standing in so far as its action involved a person of its nationality, Mr. Diallo, and was directed against “the allegedly unlawful acts of the drc 172 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, i.c.j. Reports 1970, p. 36, paras. 46–47. 173 Art. 12: “To the extent that an internationally wrongful act of a State causes direct injury to the rights of shareholders as such, as distinct from those of the corporation itself, the State of nationality of any such shareholders is entitled to exercise diplomatic protection in respect of its nationals”. 174 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, i.c.j. Reports 2007 (ii), p. 606, para. 64. 175 Ibidem. 176 Ibidem.

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which [were] said to have infringed his rights, particularly his direct rights as an associé of the two companies Africom-Zaire and Africontainers-Zaire”.177 Despite the lack of rigor in the definition of the applicable test regarding the admissibility of diplomatic protection in favour of shareholders, and the references to both the “injury” suffered and the “rights” infringed, it should be assumed that the proper criterion is always that of the alleged infringement of rights of shareholders, distinct from those of the company, as defined by the domestic law of the respondent State.

The Rule of Exhaustion of Local Remedies The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law; the rule has been generally observed in cases in which a State has adopted the cause of its national whose rights are claimed to have been disregarded in another State in violation of international law.178

The Chamber constituted to deal with the elsi case added that this rule is “an important principle of customary international law”, which cannot be held “to have been tacitly dispensed with, in the absence of any words making clear an intention to do so”.179 This rule is often considered as relating to the admissibility of claims brought before international courts and tribunals, as opposed to the merits of such claims, i.e., whether they are well founded in both fact and law.180 However, several views have been expressed about the relationship of this rule and the determination of the existence of the breach of an international obligation,

177 Ibid., p. 606, para. 65. 178 Interhandel (Switzerland v. United States of America), Preliminary Objections, Judgment, i.c.j. Reports 1959, p. 27. 179 Elettronica Sicula S.p.A. (elsi) (United States of America v. Italy), Judgment, i.c.j. Reports 1989, p. 42, para. 50. 180 See Interhandel (Switzerland v. United States of America), Preliminary Objections, Judgment, i.c.j. Reports 1959, p. 26: “Although framed as an objection [by the United States] to the jurisdiction of the Court, this objection must be regarded as directed against the admissibility of the Application of the Swiss Government. Indeed, by its nature it is to be regarded as a plea which would become devoid of object if the requirement of the prior exhaustion of local remedies were fulfilled”. See also elsi, Elettronica Sicula S.p.A. (elsi) (United States of America v. Italy), Judgment, i.c.j. Reports 1989, p. 42, para. 49.

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and the position has been taken that the rule is rather (or mostly) of a substantive character, for the international responsibility of the State cannot be incurred until local remedies have been exhausted.181 As the Court observed in the case concerning Interhandel (Switzerland v. United States of America): Before resort may be had to an international court [in cases where the State adopts the cause of its national], it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic legal system.182 This does not mean that the claim brought before an international court is merely a continuation of the legal proceedings instituted before the national jurisdictions. True, for the rule to be satisfied, the claim brought before national courts must have “the same object” as that which forms the subject of the international dispute. However, 181 See the detailed account of the different viewpoints taken among scholars in the Sixth report of the Special Rapporteur on the topic of international responsibility, Mr. Roberto Ago, Yearbook of the International Law Commission, 1977, vol. ii, Part i, pp. 21–33, paras. 51–81, and in the commentary to draft article 22, id., vol. ii, part ii, pp. 34–42, paras. 13–35. Whereas it did not contest that the rule concerns the implementation of responsibility, and is therefore of a practical or procedural nature, the ilc, in 1977, also underscored its “substantial” character, especially in the view of the two distinct legal orders in which the principle of the exhaustion of local remedies operates: “if, so long as the condition of exhaustion of local remedies has not been satisfied, the injured State has no faculty to claim reparation for an internationally wrongful act allegedly committed to its detriment in the person or property of its national, it is because for the time being its new right to reparation of an injury suffered by it has not been created”, id., vol. ii, part ii, p. 35, para. 15. 182 Interhandel (Switzerland v. United States of America), Preliminary Objections, Judgment, i.c.j. Reports 1959, p. 27. According to the ilc, and its Special Rapporteur, Mr. Roberto Ago, “[i]t is quite clear that the term “violation” used by the Court was intended to refer to the violation of the individual’s rights under internal law and not to a violation of the State’s rights under international law. The principle so succinctly stated by the Court is therefore perfectly compatible with the idea that a violation by a State of its international obligation, justifying an appeal to an international tribunal, is completed upon the State’s refusal to redress, within the framework of its domestic legal system, for the injury caused by its initial conduct to the rights of an individual” (commentary to draft article 22, Yearbook of the International Law Commission, 1977, vol. ii, part ii, p. 40, note 164).

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the local remedies rule does not, indeed cannot, require that a claim be presented to the municipal courts in a form, and with arguments, suited to an international tribunal, applying different law to different parties: for an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success.183 In that case, the Chamber found that the Application filed by the United States corresponded to the applications brought before Italian tribunals by the injured corporations. It observed that: The arguments were different, because the municipal court was applying Italian law, whereas this Chamber applies international law; and, of course, the parties were different. Yet it would seem that the municipal courts had been fully seized of the matter which [was] the substance of the Applicant’s claim before the Chamber. For both claims turn[ed] on the allegation that the requisition, by frustrating the orderly liquidation, triggered the bankruptcy, and so caused the alleged losses.184 Prior exhaustion of local remedies requires that all available remedies provided for in the municipal legal order of the respondent State have been exhausted.185 This includes “all remedies of a legal nature, judicial redress as well as redress before administrative bodies” open to the individuals or legal persons affected, provided those bodies have jurisdiction to hear the complaints and to decide upon the rights allegedly infringed.186 In the case concerning Ahmadou Sadio Diallo, the Court specified that there is no need, in principle, to exhaust non-legal/purely administrative remedies. It explained its decision as follows:

183 Elettronica Sicula S.p.A. (elsi) (United States of America v. Italy), Judgment, i.c.j. Reports 1989, p. 46, para. 59. 184 Ibid., pp. 45–46, para. 58. 185 See Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, i.c.j. Reports 2007 (ii), pp. 600, para. 44, and 609, para. 74. Having found that the drc had neither proved the existence in its domestic legal system of available and effective remedies allowing Mr. Diallo to challenge his expulsion, nor of remedies open to Mr. Diallo as associé in the companies concerned, the Court rejected the objections raised by the drc based on the non-exhaustion of local remedies. 186 Ibid., p. 601, para. 47. See also the ilc commentary to Article 14 on Diplomatic Protection, Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, p. 45, para. 5.

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while the local remedies that must be exhausted include all remedies of a legal nature, judicial redress as well as redress before administrative bodies, administrative remedies can only be taken into consideration for purposes of the local remedies rule if they are aimed at vindicating a right and not at obtaining a favour, unless they constitute an essential prerequisite for the admissibility of subsequent contentious proceedings.187 Finally, the recourse offered to the individuals or legal persons whose cause has been adopted by a State must be effective. As the Court recalled in the Ahmadou Sadio Diallo case: In matters of diplomatic protection, it is incumbent on the applicant to prove that local remedies were indeed exhausted or to establish that exceptional circumstances relieved the allegedly injured person whom the applicant seeks to protect of the obligation to exhaust available local remedies…It is for the respondent to convince the Court that there were effective remedies in its domestic legal system that were not exhausted.188 A State exercising diplomatic protection may therefore cite the ineffectiveness of the available remedies in the respondent’s domestic legal system as grounds for the failure, by the individual or private person affected, to resort to or exhaust the legal avenues open to them. In the Panevezys-Saldutiskis Railway case, the pcij found that “[t]here can be no need to resort to the municipal courts if those courts have no jurisdiction to afford relief; nor is it necessary again to resort to those courts if the result must be a repetition of a decision already given”.189 In the Prince Von Pless case, the Permanent Court stated that “the German Government…must be given an opportunity of submitting to the Court that there has been an unwarrantable delay by the Supreme Polish Administrative Tribunal in rendering [the disputed] decisions”,190 and thus that the rule on exhaustion of local remedies did not apply. It can thus be said that the situations identified by the ilc, in which local remedies would not need to be exhausted (so-called “exceptions to the local

187 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment, i.c.j. Reports 2007 (ii), p. 601, para. 47. 188 Ibid., p. 600, para. 44. 189 Panevezys-Saldutiskis Railway, Judgment, 1939, p.c.i.j., Series A/B, No. 76, p. 18. 190 Prince von Pless Administration, Order of 4 February 1933, p.c.i.j., Series A/B, No. 52, p. 16.

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remedies rule”), were based, in part, on the case law of the icj and its predecessor. Those situations are as follows: (a) there are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress; (b) there is undue delay in the remedial process which is attributable to the State alleged to be responsible; (c) there was no relevant connection between the injured person and the State alleged to be responsible at the date of injury; (d) the injured person is manifestly precluded from pursuing local remedies; or (e) the State alleged to be responsible has waived the requirement that local remedies be exhausted.191 Mixed Claims A State may also be granted an exemption from the local remedies rule in cases where its claims rest both on an injury allegedly suffered by one or more of its nationals and on an injury allegedly suffered by itself directly, or affecting its property, its territory or its agents (mixed claims). As stated in the ilc Articles on Diplomatic Protection, “[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”.192 As further explained by the ilc, such exception, based on previous decisions of the icj, “provides that 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”.193 Different tests can be applied by courts and tribunals in a view to decide whether the claim submitted to them is primarily “direct” or “indirect”, and several factors should be considered as well, such as the subject of the dispute and the remedy claimed.194 The Court’s jurisprudence provide many 191 Art. 15. 192 Art. 14, para. 3, of the ilc Articles on diplomatic protection. 193 Commentary to Art. 14 of the ilc Articles on diplomatic protection, Yearbook of the International Law Commission, 2006, Vol. ii, Part Two, p. 45, para. 9. 194 Ibid., p. 46, paras. 11–12.

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examples of disputes which involved mixed claims. Thus, in the Hostages case, the Court considered that the claim brought by the United States for the direct infringement of its rights was preponderant, although the dispute also involved injury to its nationals. Similarly, in the case concerning the Arrest Warrant of 11 August 2000, the Court did not consider that the claim by the Democratic Republic of the Congo had been made in the exercise of its right of diplomatic protection on behalf of its (former) Foreign Minister. In the elsi case, the Court’s Chamber held that “the matter which colour[ed] and pervade[d] the United States claim as a whole, [was] the alleged damage to Raytheon and Machlett [United States corporations]”, and that therefore the local remedies should have been exhausted.195 Last, in the Avena case, where Mexico sought to protect its nationals on death row in the United States, the Court found that the duty to exhaust local remedies did not apply, taking into account the “special circumstances of interdependence of the rights of the State and of individual rights”.196 Indeed, Mexico did not claim to be acting solely on the basis of the infringement of individual rights of its nationals under Article 36 of the Vienna Convention on Consular R ­ elations, but also in its own right to offer consular assistance to its nationals abroad. The Right to Invoke the Responsibility of a State In 1966, in the South West Africa cases, the Court found that, in order to invoke the responsibility of another State, States should establish a legal right or interest in the subject matter of their claims. The Court thus refused to “allow the equivalent of an actio popularis, or right resident in any member of a community to take legal action in vindication of a public interest”.197 It explained that, “although a right of this kind may be known to certain municipal systems of law, it was not known to international law as it [then stood]”.198 In its famous Barcelona Traction Judgment of 1970, the Court nuanced this affirmation, confirming that a State must have a legal interest, but at the same time suggesting that this would automatically be the case in the event of a violation of an erga omnes obligation, i.e., an obligation owed to the international community as 195 Elettronica Sicula S.p.A. (elsi) (United States of America v. Italy), Judgment, i.c.j. Reports 1989, p. 43, para. 52. 196 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, i.c.j. Reports 2004 (I), p. 36, para. 40. 197 South West Africa (Ethiopia v. South Africa) (Liberia v. South Africa), Second Phase, Judgment, i.c.j. Reports 1966, p. 47, para. 88. 198 Ibidem.

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a whole.199 Relying, inter alia, on this judgment, the ilc drafted several provisions concerning the invocation of responsibility. It distinguished, on the one hand, the right of an injured State to invoke the responsibility of another State, and, on the other hand, the right to invoke such responsibility by a State other than an injured State.200 The case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), which was decided by the Court in 2012, marked an interesting development in the Court’s jurisprudence in this regard. This case, which was brought before the Court by Belgium, concerned “Senegal’s compliance with its obligation to prosecute Mr. H[issène] Habré, former President of the Republic of Chad, for acts including alleged crimes of torture and crimes against humanity, or to extradite him to Belgium for the purposes of criminal proceedings”.201 In its Application, Belgium based its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, as well as on customary international law. 199 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, i.c.j. Reports 1970, p. 32. The existence of such obligations has been confirmed by the Court in the following cases: East Timor (Portugal v. Australia), Judgment, i.c.j. Reports 1995, p. 102, para. 29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, i.c.j. Reports 1996 (ii), p. 616, para. 31; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004 (I), pp. 172, para. 88, and 199, paras. 155–157; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, i.c.j. Reports 2006, pp. 31–32, para. 64. See also supra, Chapter 5.2. 200 Articles 42 and 48 of the ilc Articles on State Responsibility. 201 After taking power on 7 June 1982 at the head of a rebellion, Mr. Hissène Habré was President of the Republic of Chad for eight years, during which time large-scale violations of human rights were allegedly committed, including arrests of actual or presumed political opponents, detentions without trial or under inhumane conditions, mistreatment, torture, extrajudicial executions and enforced disappearances. Overthrown on 1 December 1990, Mr. Habré requested political asylum from the Senegalese Government, a request which was granted; he had been living in Dakar ever since. From 25 January 2000 onwards, a number of proceedings relating to crimes alleged to have been committed during Mr. Habré’s presidency were instituted before both Senegalese and Belgian courts. On 19 September 2005, a Belgian investigating judge issued an international warrant in absentia for the arrest of Mr. Habré, indicted as the perpetrator or co-perpetrator, inter alia, of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes, on the basis of which Belgium requested the extradition of Mr. Habré from Senegal.

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The Court noted the divergence of views between the Parties concerning the standing of Belgium, which based its claims not only on its status as a party to the Convention against Torture, but also on the existence of a special interest that would distinguish Belgium from the other parties to the Convention and give it a specific entitlement in the case of Mr. Habré, namely the proceedings brought before the Belgian courts by Belgian nationals and the issuance by a Belgian judge of an arrest warrant directed against Mr. Habré. Relying on the object and purpose of the Convention, which is “to make more effective the struggle against torture…throughout the world”, as stated in its Preamble, the Court found that the States parties to the Convention had a common interest to ensure, in view of their shared values, that acts of torture were prevented and that, if they occurred, their authors did not enjoy impunity, regardless of the nationality of the offender or the victims, or of the place where the alleged offences had occurred. The Court considered that the obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution were triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred.202 It continued as follows: [a]ll other States parties “have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention”. (…) These obligations may be defined as ‘obligations erga omnes partes’ in the sense that each State party had an interest in compliance with them in any given case.203 The Court concluded that Belgium, as a State party to the Convention against Torture, had standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under the Convention against Torture, in view of “the entitlement of each State party to the Convention to make a claim

202 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012 (ii), p. 449, para. 68. 203 Ibid.; the Court also quoted its Judgment in the Barcelona Traction case, according to which “[a]ll States parties ‘have legal interest’ in the protection of the rights involved (Barcelona Traction case, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, i.c.j. Reports 1970, p. 32, para. 33)”.

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­concerning the cessation of an alleged breach by another State party”.204 This case involved obligations erga omnes partes, i.e. obligations assumed by States under a specific international convention towards all parties thereto; the Court’s decision on the admissibility of the claims of Belgium may thus be seen as an implicit recognition of the rule expressed in Article 48, paragraph 1 (a), of the ilc Articles on State Responsibility.205 Since, in this case, the Court only had jurisdiction over the dispute concerning the interpretation and application of the Convention against Torture, it did not address the issue further, in the framework of customary international law.206 On the merits, the Court found that Senegal, by failing to submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, had breached its obligations under the Convention against Torture, and that it must, without further delay, submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, if it did not extradite him. Senegal complied with the Judgment of the Court by instituting, within its judicial system, a special court inaugurated on 8 February 2013 and set up with the specific aim of trying Hissène Habré for crimes committed in Chad between 1982 and 1990. * To date, the Court was never seized of disputes, other than those previously referred to, which raised the question of a State’s standing with regard to breaches of obligations erga omnes, or serious breaches of obligations under peremptory norms of international law by another State, and other related 204 Id., p. 450, para. 69. 205 Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, p. 126: “Any State other than the injured State is entitled to invoke the responsibility of another State…if… 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”. According to Art. 48, para. 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 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”. 206 The Court concluded, from the diplomatic exchanges submitted to it, that at the time of the filing of the Application, the dispute between the Parties did not relate to breaches of obligations under customary international law and that it thus had no jurisdiction to decide on Belgium’s claims related thereto, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, i.c.j. Reports 2012 (ii), p. 445, para. 55.

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issues concerning the particular consequences involved in terms of State responsibility.207 Given the fact that the Court’s contentious jurisdiction is limited to interState disputes, there are other aspects of the law of international responsibility that are less likely to be addressed by the Court in that context. However, as already pointed to, several pronouncements made by the Court in the exercise of its advisory jurisdiction also significantly contributed to the affirmation and strengthening of principles and rules relating to the law of State responsibility. The Court’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory represented a significant development as regards the acknowledgement, by the Court, that a State’s international responsibility may also directly be incurred towards individuals.208 Indeed, the Court found that: “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,… Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned”.209 The Court recalled the essential forms of reparation in customary law, as laid down by the pcij, and found that Israel was 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 restitution should prove to be materially impossible, Israel [had] an obligation to compensate the persons in question for the damage suffered”.210

207 See supra, Sect. 2. 208 This question was left open by the ilc, see Art. 33: 1. The obligations of the responsible State set out in this part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach. 2. This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State. 209 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 198, para. 152. 210 Ibid., para. 153. Other legal consequences of the internationally wrongful acts as regards other States as well as the United Nations were also addressed by the Court, see supra, Sect. 2.

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Select Bibliography

R. Ago, « Le délit international », Collected Courses of The Hague Academy of International Law, vol. 68 (1939), p. 415. C.F. Amerasinghe, Local Remedies in International Law, Cambridge: Cambridge University Press, 2nd ed., 2004, 445 p. D. Anzilotti, « La responsabilité internationale des États à raison des dommages soufferts par des étrangers », RGDIP, 1906, p. 5. J. Crawford, A. Pellet, S. Olleson (eds), The Law of International Responsibility, Oxford : Oxford University Press, 2010, 1296 p. P.-M. Dupuy, “Le fait générateur de la responsabilité internationale des Etats”, Collected Courses of The Hague Academy of International Law, vol. 188 (1984), p. 9. Symposium: Assessing the Work of the International Law Commission on State Responsibility, EJIL, vol. 13, No. 5 (2002), p. 1053. Symposium: The ILC’s State Responsibility Articles, AJIL vol. 96, No. 4 (2002), p. 773.

Conclusion The contribution of the International Court of Justice to the effectiveness of international law, over the past 70 years, can be measured in a number of ways. As described in the previous chapters, the Court has proved to be a most effective organ of international law, in ensuring the impartial settlement of disputes submitted to it in accordance with such law, as well as the clarification, and at times the development, of a number of essential rules governing important aspects of the relations between States. In this respect, the judicial settlement of international disputes, without becoming the rule, cannot be seen any more as being a marginal exception among the various (mostly political) means of dispute settlement available to States. Furthermore, the Court has developed a rich and consistent jurisprudence, which provides guidance to States on a number of delicate issues, the law of territorial and maritime delimitation and that of State responsibility being two examples on which attention has been focused in the present lectures.1 More broadly speaking, the Court has also contributed greatly to the fulfilment of one of the basic principles of the United Nations Charter, and of the international legal order itself, namely the maintenance of peace. The binding and final settlement by the Court of a number of complex and sensitive legal disputes between States, as well as the advisory opinions given by the Court on legal questions submitted to it by un organs or related agencies, have demonstrated its invaluable role in preventing the escalation of tensions into more serious situations, or even sometimes conflicts, and in assisting States and international organizations in pursuing their relationships and activities in accordance with international law. At times, the mere submission of a dispute to the Court, and the ensuing structured confrontation of opposing views, arguments and evidence between the Parties, within the framework of international law and through a well-ordered and pre-established procedure, has sufficed for States to find common ground and to agree to settle their dispute amicably. As testimony to the effective role assumed by the Court, it is important to note 1 The issues dealt with by the Court in the course of its jurisprudence have evolved significantly, the icj being the only international court whose jurisdiction may extend to any question of international law. In addition to the typical disputes identified earlier, e.g., diplomatic protection, State responsibility, and maritime and territorial delimitation disputes, others have been submitted to the Court concerning diverse and sometimes relatively new aspects of international law: the use of force, including nuclear weapons, genocide, humanitarian law, environmental law, etc.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004328860_008

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that its decisions have almost always been fully implemented in practice by the States concerned. The same can be said of the advisory opinions rendered by the Court, which, although by nature not binding on the requesting organs or the Member States, have on most occasions had an important impact on the disputes or situations in question. As such, the Court has met the expectations raised, in 1945, by its establishment as one of the principal organs of the United Nations (its Statute being an integral part of the un Charter), and demonstrated its ability to perform its judicial functions successfully and efficiently within the framework of the organization that is responsible for the maintenance of international peace and security. The Court has also pushed back the limits of judicial settlement, refusing to “sh[y] away from a case brought before it merely because it had political implications or because it involved serious elements of the use of force”,2 while clarifying the relationships and the complementarity, in achieving the purposes and principles of the United Nations, between the several organs entrusted with different functions to ensure collective security. In adhering to the principle of its independence, and to the other requirements guiding its activities as a Court, the icj has thus consolidated its position throughout the history of the United Nations. Over the last 70 years, the political support enjoyed by the Court from Member States and organs of the un has constantly improved. It can certainly be said that the Court has overcome with great success many of the challenges it has faced since 1945, be it the reluctance of States to submit their disputes to the Court in the early days of the un,3 or the mistrust in the Court felt by a significant part of the un membership, in particular the newly independent States, after the South West Africa cases and until the mid-1970s.4 The Court has also adapted to major developments in international relations. The wider recognition of the icj in the context of the un, based on the 2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), i.c.j. Reports 1984, pp. 434–435, para. 96. See Chapter 3 above. 3 Reference may be made here to the call by the General Assembly in 1947 for greater use of the icj by the United Nations and its organs, as well as by States; see resolution 171 (ii), 14 November 1947. 4 Reference may be made here to the resolutions by which the General Assembly has reaffirmed and emphasized the role that the Court should play as the principal judicial organ of the un: resolution 3232 (xxix), Review of the role of the International Court of Justice, 12 November 1974; Manila Declaration on the Peaceful Settlement of Disputes, 15 November 1982, A/RES/37/10; Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, 5 December 1988, A/RES/43/51.

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number of States parties to its Statute, has been of undeniable significance for the Court over the past 70 years. Its composition has diversified in order to better reflect the huge increase in the number of States making up the international community, and its jurisdiction ratione personae is truly universal. A study of the Court’s role shows the literally global nature of recourse to its services for the settlement of international disputes. Almost 90 States, from all regions of the world, have been parties to cases before the Court, and it has entertained not only disputes between States from the same region (Europe (over 30), Latin America (some 15), Africa (approximately 20) and Asia (around 10)), but also 40 or so mixed or “intercontinental” disputes. Recently, the Court has furthermore had to cope with a significant upturn in interest on the part of States in the services it can provide for the peaceful settlement of disputes, and with a resulting backlog of cases on its docket. As a consequence, reforms have been carried out by the Court itself in order to increase the efficiency of its working methods, thus enabling it to respond in an appropriate way to the steady increase in its workload.5 The overall confidence of States in the function entrusted to the Court, and their recognition of its effective contribution to the peaceful settlement of disputes and the maintenance of peace, have been reflected in the support provided by them to the Court, through the organs of the un.6 While a continuous 5 In 2006, the General Assembly “express[ed] its appreciation to the Court for the measures adopted to operate an increased workload with maximum efficiency; [and stressed] the desirability of finding practical ways and means to strengthen the Court, taking into consideration, in particular, the needs resulting from its workload”, Commemoration of the sixtieth anniversary of the International Court of Justice, 4 December 2006, A/RES/61/37, paras. 2 and 3. The Court has entirely eliminated its backlog, with the result that it is now able to hold hearings and deliberate, in every case, shortly after the closure of the written proceedings; see the address by H.E. Judge Peter Tomka, President of the Court, to the sixty-ninth session of the General Assembly, 30 October 2014, http://www.icj-cij.org/presscom/files/8/18388.pdf. 6 In addition to the resolutions already referred to above, see: Proclamation of the Decade of International Law by the General Assembly, 17 November 1989, A/RES/44/23; 2005 World Summit Outcome, resolution of the General Assembly, adopted on 16 September 2005, A/RES/60/1; Declaration of the high-level meeting of the General Assembly on the rule of law at the national and international levels, resolution adopted by the General Assembly on 24 September 2012, A/RES/67/1. See also: Statement by the President of the Security Council, 22 June 2006, S/PRST/2006/28 (“The Council emphasizes the important role of the International Court of Justice, the principal judicial organ of the United Nations, in adjudicating disputes among States”); Statement by the President of the Security Council, 19 January 2012, S/PRST/2012/1 (“The Council emphasizes the key role of the International Court of Justice, the principal judicial organ of the United Nations, in adjudicating disputes among States and the value of its work. To this end

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dialogue and close co-operation between the Court and the other un principal organs may be of prime importance in this respect, the Court is nonetheless solely responsible for the high level of efficiency and integrity in settling international disputes that it has maintained throughout its history, and for ensuring predictability and legal security to States and international organizations, in keeping with its role as the true “organ” of international law, as the icj referred to itself in the first case that it decided nearly 70 years ago.7

the Council calls upon States that have not yet done so to consider accepting the jurisdiction of the Court in accordance with its Statute”). 7 Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, i.c.j. Reports 1949, p. 35.

Index Administrative tribunals 89 et seq. Advisory Committee of Jurists 3, 15 et seq., 20, 22, 25, 26, 28, 29, 30, 37, 45, 71, 73, 82, 100, 101 Advisory opinions 32 et seq., 85 et seq., 121–122, 124–125, 135–136, 140, 206n, 262 “compulsory” advisory opinions 88 et seq., 93, 96 Arbitration 3, 9 et seq., 58, 98 et seq., 100n, 113–114, 170, 190, 205, 242 Boundary disputes see Maritime disputes; Territorial disputes Compromis 13, 16n, 26, 52, 53 et seq., 61–62, 100 Compromissory clauses 11n, 15, 42, 47, 52, 53 et seq., 63, 79, 101–104, 142, 168, 171 Compulsory jurisdiction 5, 19, 26–27, 32–33, 36, 42, 52, 53 et seq., 168 Declarations of acceptation 27, 32, 42, 52, 55–57, 60, 63 et seq., 102, 105–106, 168, 171 et seq. see also Jurisdiction of the Court Customary international law 6, 29, 167, 172, 175, 184–185, 188, 189, 193, 203, 205–206, 207, 227–229, 243, 251–252, 253, 261 Diplomatic protection 15, 37, 121, 232, 240–258 Effectiveness 1 et seq., 59 et seq., 69, 150, 160, 175, 205 Effectivité 1, 111n, 148, 155, 159 et seq., 164 et seq. and legal title 146 et seq., 155, 159, 160, 162, 164 Effet utile 62 Equity 2, 9, 28–30, 110, 183–184, 190–191, 199, 250 Ex aequo et bono 30, 184 Exhaustion of local remedies 243, 251n, 253–257 First World War 8, 17, 18, 31

Forum prorogatum 55, 56, 57, 168 General principles of law 24, 30, 212n, 247 Hague International Peace Conferences 11 et seq., 22, 28, 58, 69n, 100 International Law Commission (ilc)  173–174, 205, 207 et seq. Articles on State Responsibility 207n, 210, 213, 218 et seq., 225, 228 et seq., 236, 259 et seq. Articles on Diplomatic Protection 242 et seq., 246, 251, 257 Articles on Responsibility of International Organizations 50n, 206n International organizations 5, 51 access to the Court 47–52, 88 et seq. responsibility 50n, 52, 206n International Prize Court 14, 28 Judges ad hoc 25–26 Judgments binding force 5, 20, 32, 44, 69 et seq., 80n, 83 compliance with 69 et seq. 73–74, 79–80, 108 et seq., 112 enforcement of 73 et seq. interpretation of 72 et seq., 206n revision of 71 et seq., 206n Judicial review of acts of un organs 134–145 Judicial settlement of international disputes 4–5, 18 et seq., 32–33, 42, 58, 69, 112 et seq., 120–121, 170, 203 Jurisdiction of the Court 36 et seq. consensual jurisdiction 2, 7, 36, 43n, 53, 57 et seq., 81, 93–94, 100, 129 individuals 37–38 inherent limitations 66–68 international organizations 50–52 non-un Member States 39 et seq., 76n ratione materiae 36, 43–44, 53 et seq. ratione personae 37 et seq., 38, 42, 43 see also Compulsory jurisdiction; Forum prorogatum Jus cogens 75n, 89, 144n, 236–239

270 League of Nations 3, 8, 17, 19 et seq., 25 et seq., 32, 37–38, 45, 75, 77–78, 85, 94, 96, 113, 120–121 Maritime disputes 146–203 baselines 176–178 continental shelf 170 et seq., 182 et seq., 195 et seq. equidistance 174, 183, 186, 189 et seq., 195 et seq. exclusive economic zone 170, 173 et seq., 180, 182, 185, 193 islands 178, 179 et seq. low-tide elevations 177 et seq. methodology 195 et seq. (dis)proportionality 184n, 187, 191, 196, 198–202 relevant circumstances 185 et seq., 190, 193, 194, 197n, 202 rocks 54n, 153, 164n, 181, 198n single maritime boundary 176n, 187, 188, 190, 192, 194–195, 197 territorial sea 170, 172 et seq., 176, 177, 193 et seq., Members of the Court election 20 et seq., 26, 33 Non liquet 28–30 Obligations erga omnes 145, 236–240, 258, 260–261 Obligations of conduct and obligations of result 216 Pacta sunt servanda 74, 76, 79 Peaceful settlement of disputes 4, 7, 98 et seq., 106 et seq., 112 et seq., 121, 240, 244 Good offices 12, 13, 113n, 123 Mediation 12, 13n, 98, 113, 114 Negotiations 9, 12, 99 et seq., 120n, 187 see also United Nations Permanent Court of Arbitration (pca)  13 et seq., 16, 18, 20 et seq., 26 Permanent Court of International Justice (pcij) 3, 4, 8, 17 et seq., 31 et seq., 37–38, 44n, 45, 56n, 85–86, 120, 206

Index Prevention obligation of 214–216 Preventive diplomacy 87n, 120 et seq., 167 Provisional measures 80–85, 108, 125–134 Res judicata pro veritate habetur 66, 69 et seq., 80n, 90 Rule of law 2–6 Second World War 3–4, 32, 244 Self-defence 75n, 98, 226–227 Sources of international law 24, 27 et seq., 33, 167–168, 172, 175, 184–185, 188 et seq., 205–206, 212n, 247 Sovereign equality of States 2, 7, 20, 36, 205 State responsibility 6, 33, 37–38, 52n, 81, 112, 140, 205 et seq. Attribution 217 et seq. Assurances and guarantees of non-repetition 234–236 Cessation 130, 207, 233, 261n, Circumstances precluding wrongfulness  225 et seq. Restitution 230–233, 262 Satisfaction 231–232, 241 Territorial disputes 121, 146 et seq., acquisitive prescription 154–155 critical date 167 legal title 146 et seq., 155, 162 et seq. transfer of sovereignty 153–154 Trust Fund to Assist States in the Settlement of Disputes trough the International Court of Justice 124 United Nations 3, 4, 8, 24, 32, 36, 38 et seq., 47–48, 56, 88, 92–93, 96, 98, 119, 122–123, 239n Charter 3, 7, 8, 25–26, 33, 36, 39, 75 et seq., 86–87, 95, 98 et seq., 112 et seq., 119, 120, 135, 170, 226n General Assembly 32, 39, 56, 78n, 86–87, 96–97, 114–115, 118, 121–122, 123, 125, 136 et seq., 205n, 226n, 239n, 243n

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Index Economic and Social Council 51n, 96 Secretary General 56, 86–87, 90n, 96, 113n, 116–117, 120, 122–124 Security Council 32, 39 et seq., 51, 56n, 76 et seq., 85, 86–87, 97, 98, 100, 113–119, 120, 122, 123, 127 et seq., 134 et seq., 170, 239n United Nations Convention on the Law of the Sea (unclos, 1982) 168–169, 175, 177, 179, 181, 185, 190, 195

Use of force (prohibition of the) 4, 8, 12, 15, 17, 98, 117–118, 121, 125 et seq., 220, 226 et seq., 237n Uti possidetis juris 155 et seq., 162 et seq. Ut sit finis litium 71 Vienna Convention on the Law of Treaties 61, 63, 64, 79, 82, 88, 147, 209, 211–212, 236–237