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The 2006 Judicial Activity of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Stephen Mathias
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Type
Current Developments
Information
American Journal of International Law , Volume 101 , Issue 3 , July 2007 , pp. 602 - 615
Copyright
Copyright © American Society of International Law 2007

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References

1 Armed Activities on the Territory of the Congo (New Application: 2002) (Dem.Rep. Congo v. Rwanda), Jurisdiction and Admissibility (Int’l Ct. Justice Feb. 3, 2006) [hereinafter DRC v. Rwanda]. All of the Court’s materials cited in this report are available on its recently improved Web site, <http://www.icj–cij.org=.

2 DRC v. Rwanda, supra note 1, para. 1.

3 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) (Int’l Ct. Justice Dec. 19, 2005). The DRC had also filed a proceeding against Rwanda in June 1999, as well as one against Burundi at the same time, but those proceedings were discontinued in 2001 and a new application against Rwanda with additional jurisdictional bases was filed in May 2002.

4 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Provisional Measures, 2000 ICJ Rep. 111, 123, paras. 32–34 (July 1).

5 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), Provisional Measures, 2002 ICJ Rep. 219, 249, para. 89 (July 10).

6 DRC v. Rwanda, supra note 1, para. 16.

7 Id., paras. 21–22.

8 Id., para. 25.

9 Id., para. 64.

10 As early as Reservations to the Genocide Convention in 1949, the Court had affirmed that there are “principles [including those underlying the Genocide Convention] which are recognized by civilized nations as binding on States, even without any conventional obligation,” Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15, 23 (May 28), and it had previously stated that the “rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes.” Application ofthe Convention on the Prevention and Punishment ofthe Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595, 616, para. 31 (July 11). In Military and Paramilitary Activities in and Against Nicaragua, the Court had made reference to jus cogens in the context of its discussion of UN Charter provisions concerning the use of force, citing the work of the International Law Commission and the written pleadings of Nicaragua and the United States. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 100–01, para. 190 (June 27).

11 DRC v. Rwanda, supra note 1, para. 64. The Court had reached the analogous conclusion in the East Timor case with respect to an alleged breach of self–determination, having the character of a right and obligation erga omnes.

East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, 102, para. 29 (June 30).

12 DRC v. Rwanda, supra note 1, para. 56. Article IX of the Genocide Convention, Dec. 9, 1948, 78 UNTS 227, states:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Rwanda acceded to the Convention on April 16, 1975. Its instrument of accession, deposited with the secretary-general of the United Nations, contains the following reservation: “The Rwandese Republic does not consider itself as bound by Article IX of the Convention.” Quoted in DRC v. Rwanda, supra note 1, para. 38.

13 DRC v. Rwanda, supra note 1, para. 69.

14 Id., para. 67.

15 Id., para. 66.

16 Id., para. 67 (emphasis added).

17 Id., para. 68 (citing, e.g., Legality of Use of Force (Yugo. v. Spain), Provisional Measures, 1999 ICJ Rep. 761, 772, paras. 32–33 (June 2)). The Court noted “that, as a matter of the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it.”

18 Id., para. 120 (quoting Vienna Convention on the Law of Treaties, Art. 66, opened for signature May 23, 1969, 1155 UNTS 331).

19 Id., para. 125 (citing Vienna Convention on the Law of Treaties, supra note 18, Art. 4).

20 Id., para. 125.

21 Id., para. 41. This finding is consistent with Article 22, paragraph 3(a) of the Vienna Convention on the Law of Treaties. The decree–law in question is No. 014/01 of February 15, 1995.

22 DRC v. Rwanda, supra note 1, para. 48.

23 Id.

24 Id.

25 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974ICJ Rep. 253, 267–68, paras. 43–46; 457, 472–73, paras. 45–49 (Dec. 20).

26 DRC v. Rwanda, supra note 1, para. 80 (quoting Convention on the Elimination of All Forms of Discrimination Against Women, Art. 29(1), opened for signature Mar. 1, 1980, 1249 UNTS 13).

27 Id., para. 91.

28 Id. Judges Kooijmans and Al–Khasawneh wrote separately, however, to question the Court’s treatment of the negotiations issue, both making reference to Military and Paramilitary Activities in and Against Nicaragua, in which the Court could be viewed as having taken a more generous approach to jurisdiction with respect to such a requirement. Both the declaration and the separate opinion quote the following passage from Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 428, para. 83 (Nov. 26):

[I]t does not necessarily follow that, because a State has not expressly referred in negotiations with another State to a particular treaty as having been violated by conduct of that other State, it is debarred from invoking a compromissory clause in that treaty. The United States was well aware that Nicaragua alleged that its conduct was a breach of international obligations before the present case was instituted; and it is now aware that specific articles of the . . . Treaty are alleged to have been violated.

DRC v. Rwanda, supra note 1, Declaration of Judge Kooijmans, para. 10; Separate Opinion of Judge Al–Khasawneh, para. 12.

29 DRC v. Rwanda, supra note 1, Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, para. 21.

30 Id., para. 24.

31 Id., para. 25.

32 Id., para. 29.

33 Pulp Mills on the River Uruguay (Arg. v. Uru.), Provisional Measures, para. 1 (Int’l Ct. Justice July 13, 2006).

34 Id., para. 3.

35 Id, paras. 12, 20.

36 Id., para. 70.

37 Id., para. 73.

38 Id, para. 74.

39 Id.

40 Id.

41 Id., para. 75.

42 Id., para. 78 (quoting Passage Through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ Rep. 12, 19, para. 31 (July 29)).

43 Id., para. 47.

44 Id., para. 62.

45 Passage Through the Great Belt, supra note 42, 1991 ICJ Rep. at 36 (citing Polish Agrarian Reform and German Minority, 1933 PCIJ (ser. A/B) No. 58, at 181 (July 29) (Anzilotti, J., dissenting)).

46 Id. at 28.

47 Id. at 29–30.

48 LaGrand (Ger. v. U.S.), 2001 ICJ Rep. 466, 506, para. 109 (June27).

49 Pulp Mills on the River Uruguay, supra note 33, Separate Opinion of Judge Abraham, para. 8.

50 Id., para. 9.

51 Id., para. 11.

52 With respect to U.S. jurisprudence, “[t]he traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits.” Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

53 See Bernard, H. Oxman,Jurisdiction and the Power to Indicate Provisional Measures, in The International Court Of Justice At A Crossroads 323, 350–51 (Lori, F. Damrosch ed., 1987).Google Scholar

54 ICJ Practice Directions, as amended Dec. 6, 2006; ICJ Press Release 2006/43 (Dec. 13, 2006).

55 ICJ Practice Directions, supra note 54. The original version of Practice Direction XI of July 30, 2004, can be found in 2003–04 ICJ Y.B. 4.

56 See Rosalyn, Higgins, ICJ President, Speech to the General Assembly (Oct. 26, 2006)Google Scholar, UN Doc. A/61 /PV.41, at 2, 6 (2006).

57 ICJ Press Release 2006/5 (Feb. 6, 2006).

58 Higgins, supra note 56.

59 Id. at 5.

60 Rosalyn, Higgins, ICJ President, Speech to the Legal Advisers of the Ministries of Foreign Affairs (Oct. 23, 2006).Google Scholar

61 Rosalyn, Higgins, ICJ President, Speech to the Sixth Committee of the General Assembly, at 1 (Oct. 27, 2006).Google Scholar

62 Id. at 2.

63 LaGrand, supra note 48.

64 Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 ICJ Rep. 12, 69, para. 150 (Mar. 31).

65 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), 2002 ICJ Rep. 303, 452, para. 318 (Oct. 10).

66 Higgins, supra note 56, at 5.

67 Status vis–à–vis the Host State of a Diplomatic Envoy to the United Nations (Dominica v. Switz.), Provisional Measures (Int’l Ct. Justice June 9, 2006).

68 ICJ Press Release 2006/32 (Aug. 10, 2006).