This is the third post in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes will include, decisions on maritime time and territorial boundaries, on the use of force, cases where the ICJ refused to exercise its jurisdiction, or where proceedings were discontinued by parties. These summaries are not intended to be comprehensive. It is intended to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list is not yet comprehensive, and other cases will continue to be added.
Note: Relevant ICJ decisions when it comes preliminary objections are not always considered here, even if it relates to treaty interpretations. A list of cases that fall within this subsection can be found here.
1. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgement 31 March 2014
Primary treaty interpreted: 1946 International Convention for the Regulation of Whaling
Excerpts of the summary provided in the ICJ website:
“Proceedings were instituted on 31 May 2010 by Australia, which accused Japan of pursuing “a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’)”, in breach of obligations assumed by Japan under the 1946 International Convention for the Regulation of Whaling and of other international obligations for the preservation of marine mammals and the marine environment.
In the Judgment it rendered on 31 March 2014, the Court… turned to the question of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.
With respect to the interpretation of that provision, the Court first observed that, although Article VIII gives discretion to a State party to the Convention to reject the request for a special permit, whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception. In the view of the Court, the two elements of the phrase for purposes of (1) scientific research (2)are cumulative.
As regards the application of that same provision, the Court indicated that JARPA II could broadly be described as a “scientific research” programme. It then turned to the question of whether it was for purposes of scientific research that lethal methods were used. To answer that question, it examined whether the programme’s design and implementation were reasonable in relation to achieving its stated research objectives. The Court considered that the evidence before it did not establish that such was the case. It concluded that the special permits issued by Japan for the killing, taking and treating of whales in connection with JARPA II were not granted “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the 1946 Convention.
The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan had breached several provisions of the Schedule annexed to the said Convention. Having found that Japan had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and to refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.”
2. Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) Judgement 5 December 2011
Primary treaty interpreted: Interim Accord of 13 September 1995
Excerpts of the summary provided in the ICJ website: “On 17 November 2008, the former Yugoslav Republic of Macedonia filed in the Registry of the Court an Application instituting proceedings against the Hellenic Republic in respect of a dispute concerning the interpretation and implementation of the Interim Accord of 13 September 1995. In particular, the Applicant sought to establish that, by objecting to the Applicant’s admission to NATO, the Respondent had breached Article 11, paragraph 1, of the said Accord, which provides tha: “Upon entry into force of this Interim Accord, the Party of the First Part agrees not to object to the application by or the membership of the Party of the Second Part in international, multilateral and regional organizations and institutions of which the Party of the First Part is a member ; however, the Party of the First Part reserves the right to object to any membership referred to above if and to the extent the Party of the Second Part is to be referred to in such organization or institution differently than in paragraph 2 of United Nations Security Council resolution 817 (1993).” ” The case summary is available here.
3. Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment 20 April 2010
Primary treaty interpreted: 1975 Statute of the River Uruguay
Excerpts of the summary provided in the ICJ website:
On 4 May 2006, Argentina initiated proceedings against Uruguay concerning “alleged breaches by Uruguay of obligations incumbent upon it under the 1975 Statute of the River Uruguay, for the purpose of establishing the joint machinery necessary for the optimum and rational utilization of that part of the river which constitutes their joint boundary.”
Argentina argued that Uruguay had “unilaterally authorized the construction of two pulp mills on the River Uruguay without complying with the obligatory prior notification and consultation procedures under the 1975 Statute.” Argentina claimed that “those mills posed a threat to the river and its environment and were likely to impair the quality of the river’s waters and to cause significant transboundary damage to Argentina. As basis for the Court’s jurisdiction, Argentina invoked the first paragraph of Article 60 of the 1975 Statute, which provides that any dispute concerning the interpretation or application of that Statute which cannot be settled by direct negotiations may be submitted by either party to the Court.”
While both Argentina and Uruguay made requests for the indication of provisional measures, by an Order of 13 July 2006 and 23 January 2007, the Court found that “the circumstances, as they then presented themselves to it, were not such as to require the exercise of its power under Article 41 of the Statute”.
“With respect to Argentina’s argument that projects had been authorized by Uruguay in violation of the mechanism for prior notification and consultation laid down by Articles 7 to 13 of the 1975 Statute (the procedural violations), the Court noted that Uruguay had not informed the Administrative Commission of the River Uruguay (a body established under the Statute) of the projects as prescribed in the Statute (…) The Court concluded that, by not informing CARU of the planned works before the issuing of the initial environmental authorizations for each of the mills and for the port terminal adjacent to the Orion (Botnia) mill, and by failing to notify the plans to Argentina through CARU, Uruguay had violated the 1975 Statute.”
With respect to Argentina’s contention that the industrial activities authorized by Uruguay had had, or would have, an adverse impact on the quality of the waters of the river and the area affected by it, and had caused significant damage to the quality of the waters of the river and significant transboundary damage to Argentina (the substantive violations), the Court found, based on a detailed examination of the Parties’ arguments, that there was “no conclusive evidence in the record to show that Uruguay has not acted with the requisite degree of due diligence or that the discharges of effluent from the Orion (Botnia) mill have had deleterious effects or caused harm to living resources or to the quality of the water or the ecological balance of the river since it started its operations in November 2007”.
“Consequently, the Court concluded that Uruguay had not breached substantive obligations under the Statute. In addition to this finding, however, the Court emphasized that, under the 1975 Statute, “[t]he Parties have a legal obligation . . . to continue their co-operation through CARU and to enable it to devise the necessary means to promote the equitable utilization of the river, while protecting its environment”.”
NB: In November 2010, BBC reported that Argentina and Uruguay entered into an accord that sets up a scientific committee composed of experts from both nations which will monitor the pollution levels in the River Uruguay and within the mill.
See also an article by Dapo Akande on the ICJ’s role in encouraging the settlement of disputes.
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Judgement 4 June 2008
Primary treaties interpreted: Treaty of Friendship and Co-operation concluded between France and Djibouti, 27 June 1977 and Convention on Mutual Assistance in Criminal Matters between Djibouti and France, 27 September 1986.
Excerpts of the summary provided in the ICJ website:
On 9 January 2006, the Republic of Djibouti filed an Application against the French Republic in respect of a dispute: “concern[ing] the refusal by the French governmental and judicial authorities to execute an international letter rogatory regarding the transmission to the judicial authorities in Djibouti of the record relating to the investigation in the Case against X for the murder of Bernard Borrel, in violation of the Convention on Mutual Assistance in Criminal Matters between the [Djiboutian] Government and the [French] Government, of 27 September 1986, and in breach of other international obligations borne by [France] to . . . Djibouti” (…) (and in) a violation of the Treaty of Friendship and Co-operation concluded between France and Djibouti on 27 June 1977. (…)
(Regarding the) Treaty of Friendship and Co-operation between France and Djibouti of 27 June 1977 (…) the Court concluded that “the fields of co-operation envisaged in th[at] Treaty do not include co-operation in the judicial field” and thus that the above-mentioned relevant rules imposed no concrete obligations in this case.
(…) Under that (1986) Convention, judicial co-operation is envisaged, including the requesting and granting of “letters rogatory” (usually the passing, for judicial purposes, of information held by a party). The Convention also provides for exceptions to this envisaged co-operation. Since the French judicial authorities refused to transmit the requested case file, a key question in the case was whether that refusal fell within the permitted exceptions. Also at issue was whether France had complied with the provisions of the 1986 Convention in other respects. The Court held that the reasons given by the French investigating judge for refusing the request for mutual assistance fell within the scope of Article 2 (c) of the Convention, which entitles the requested State to refuse to execute a letter rogatory if it considers that that execution is likely to prejudice its sovereignty, its security, its ordre public or other of its essential interests. The Court did however conclude that, as no reasons were given in the letter dated 6 June 2005, whereby France informed Djibouti of its refusal to execute the letter rogatory presented by the latter on 3 November 2004, France had failed to comply with its international obligations under Article 17 of the 1986 Convention.”
NB: The Court’s jurisdiction in this case was established by forum prorogatum.
When submitting a dispute to the Court, a State may propose to base the Court’s jurisdiction upon a consent yet to be given or manifested by the State against which the application is made, in reliance on article 38, paragraph 5, of the Rules of Court. If the latter State gives its consent, the Court’s jurisdiction is established and the new case is entered in the General List on the date that that consent is given – a situation known as forum prorogatum. See Annual Report of the ICJ (2015 – 2016).
France consented to the Court establishing its jurisdiction, and held that France’s consent was “valid only for the purposes of the case, within the meaning of Article 38, paragraph 5, i.e., in respect of the dispute forming the subject of the Application and strictly within the limits of the claims formulated therein”. This was the first time that the Court had to decide on the merits of a dispute brought under Rules relating to Article 38(5) (para 63). On the background to the adoption of forum prorogatum see Commentary to the Statute of the International Court of Justice (excerpts available online) and Lee, Sienho, Forum Prorogatum Returns to the International Court of Justice (full article available online).
The jurisdiction of the Court is based on the consent of States, under the conditions expressed therein. For the Court to exercise jurisdiction on the basis of forum prorogatum, “the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State.” In other words, the consent “must be certain”. The attitude of the respondent State must “be capable of being regarded as ‘an unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner.” (see paragraphs 60-64)
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment, 16 March 2001.
Primary treaty interpreted: Certain bilateral agreements between Qatar and Bahrain concluded in December 1987 and December 1990.
Excerpts of the summary provided in the ICJ website:
“On 8 July 1991, Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect of certain disputes between the two States relating to sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at Jaradah and the delimitation of their maritime areas.
Qatar founded the jurisdiction of the Court upon certain agreements between the Parties stated to have been concluded in December 1987 and December 1990, the subject and scope of the commitment to accept that jurisdiction being determined by a formula proposed by Bahrain to Qatar in October 1988 and accepted by the latter State in December 1990 (the “Bahraini formula”). As Bahrain contested the basis of jurisdiction invoked by Qatar, the Parties agreed that the written proceedings should first be addressed to the questions of jurisdiction and admissibility. After a Memorial of the Applicant and Counter-Memorial of the Respondent had been filed, the Court directed that a Reply and a Rejoinder be filed by each of them, respectively.
On 1 July 1994 the Court delivered a first Judgment on the above-mentioned questions. It took the view that both the exchanges of letters of December 1987 between the King of Saudi Arabia and the Amir of Qatar, and between the King of Saudi Arabia and the Amir of Bahrain, and the document entitled “Minutes” and signed at Doha in December 1990 constituted international agreements creating rights and obligations for the Parties ; and that by the terms of those agreements they had undertaken to submit to the Court the whole of the dispute between them.
In the latter regard, the Court pointed out that the Application of Qatar did not cover some of the constitutive elements that the Bahraini formula was supposed to cover. It accordingly decided to give the Parties the opportunity to submit to it “the whole of the dispute” as circumscribed by the Minutes of 1990 and that formula, while fixing 30 November 1994 as the time-limit within which the Parties were, jointly or separately, to take action to that end. On the prescribed date, Qatar filed a document entitled “Act”, which referred to the absence of an agreement between the Parties to act jointly and declared that it was submitting “the whole of the dispute” to the Court. On the same day, Bahrain filed a document entitled “Report” in which it indicated, inter alia, that the submission to the Court of “the whole of the dispute” must be “consensual in character, that is, a matter of agreement between the Parties”.
By observations submitted to the Court at a later time, Bahrain indicated that the unilateral “Act” of Qatar did not “create that jurisdiction [of the Court] or effect a valid submission in the absence of Bahrain’s consent”.
By a second Judgment on the questions of jurisdiction and admissibility, delivered on 15 February 1995, the Court found that it had jurisdiction to adjudicate upon the dispute submitted to it between Qatar and Bahrain, and that the Application of Qatar, as formulated on 30 November 1994, was admissible. The Court, having proceeded to an examination of the two paragraphs constituting the Doha Agreement, found that, in that Agreement, the Parties had reasserted their consent to its jurisdiction and had defined the object of the dispute in accordance with the Bahraini formula ; it further found that the Doha Agreement permitted the unilateral seisin and that it was now seised of the whole of the dispute. (…)
Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment, 3 February 1994
Primary treaties interpreted: Agreement entered between Libya and Chad in Algiers, 31 August 1989 and the Franco-Libyan Treaty of Friendship and Good Neighbourliness, 10 August 1955
This case related to the delimitation of the land boundary line between Libya and Chad. On 3 September 1990, Chad initiated proceedings against the Libya based upon (1) an Agreement entered between them in Algiers on 31 August 1989 and, (2) subsidiarily, on the Franco-Libyan Treaty of Friendship and Good Neighbourliness of 10 August 1955. In respect of the latter agreement,
“(…) referring to the provision of the 1955 Treaty according to which it had been concluded for a period of 20 years and could be terminated unilaterally, the Court indicated that that Treaty had to be taken to have determined a permanent frontier, and observed that, when a boundary has been the subject of agreement, its continued existence is not dependent upon the continuing life of the Treaty under which that boundary was agreed (emphasis added).” See ICJ Summary here and here.
Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy) Judgment, 20 July 1989
Primary treaties interpreted: Treaty of Friendship, Commerce and Navigation of 1948 and the Agreement Supplementing the above Treaty.
Excerpts of the summary provided in the ICJ website:
On 6 February 1987, the United States instituted proceedings against Italy in respect of a dispute arising out of the requisition by the Government of Italy of the plant and related assets of Raytheon-Elsi S.p.A., an Italian company producing electronic components and previously known as Elettronica Sicula S.p.A. (ELSI), which was stated to have been 100 per cent owned by two United States corporations (…)
On 20 July 1989, the Chamber delivered a Judgment in which it rejected the objection raised by Italy and said that the latter had not committed any of the breaches alleged by the United States of the bilateral Treaty of Friendship, Commerce and Navigation of 1948, or of the Agreement Supplementing that Treaty. The United States principally reproached the Respondent (a) with having effected an unlawful requisition of the ELSI plant, thus depriving the shareholders of their direct right to proceed to the liquidation of the company’s assets under normal conditions ; (b) with having been incapable of preventing the occupation of the plant by the employees ; (c) with having failed to reach any decision as to the legality of the requisition during a period of sixteen months ; and (d) with having intervened in the bankruptcy proceedings, with the result that it had purchased ELSI at a price well below its true market value.
After a detailed consideration of the facts alleged and the relevant conventional provisions, the Chamber found that the Respondent had not breached the 1948 Treaty and the Agreement supplementing that Treaty in the manner claimed by the Applicant, and rejected the claim for reparation made by the United States.
Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal Advisory Opinion, 27 May 1987.
Primary treaty interpreted: UN Charter (Article 101(3))
This case concerns a refusal by the Secretary-General of the United Nations to renew the appointment of a staff member of the Secretariat beyond the date of expiry of his fixed-term contract, the reasons given being that the staff member had been seconded from a national administration, that his secondment had come to an end and that his contract with the United Nations was limited to the duration of the secondment. In a judgment delivered on 8 June 1984, the Administrative Tribunal rejected the staff member’s appeal against the Secretary-General’s refusal. The staff member in question applied for a review of the judgment to the Committee on Applications for Review of Administrative Tribunal Judgements, which requested the Court to give an advisory opinion on the merits of that decision. In its Advisory Opinion, rendered on 27 May 1987, the Court found that the Administrative Tribunal had not failed to exercise jurisdiction vested in it by not responding to the question whether a legal impediment existed to the further employment in the United Nations of the applicant after the expiry of his fixed-term contract, and that it did not err on any question of law relating to the provisions of the Charter of the United Nations. In that regard, the Court found that the Tribunal had established that there had been “reasonable consideration” of the applicant’s case, and by implication that the Secretary-General had not been under a misapprehension as to the effect of secondment, and that the provision of Article 101, paragraph 3, of the Charter must have been present in the mind of the Tribunal when it considered the question. In the view of the Court, those findings could not be disturbed on the ground of error on a question of law relating to the provisions of the Charter.
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 Advisory opinion, 26 April 1988
On 2 March 1988, the General Assembly of the United Nations adopted a resolution whereby it requested the Court to give an advisory opinion on the question of whether the United States of America, as a party to the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, was under an obligation to enter into arbitration in accordance with Section 21 of the Agreement. That resolution had been adopted in the wake of the signature and imminent entry into force of a law of the United States, entitled Foreign Relations Authorization Act, Title X of which established certain prohibitions regarding the Palestine Liberation Organization (PLO), inter alia, a prohibition “to establish or maintain an office, headquarters, premises or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization”.
The PLO, in accordance with the Headquarters Agreement, had a Permanent Mission to the United Nations. The Secretary-General of the United Nations invoked the dispute settlement procedure set out in Section 21 of the Agreement and proposed that the negotiations phase of the procedure commence on 20 January 1988.
The United States, for its part, informed the United Nations that it was not in a position and was not willing to enter formally into that dispute settlement procedure, in that it was still evaluating the situation and as the Secretary-General had sought assurances that the arrangements in force at the time for the Permanent Observer Mission of the Palestine Liberation Organization would not be curtailed or otherwise affected.
On 11 February 1988, the United Nations informed the Department of State that it had chosen its arbitrator and pressed the United States to do the same. The Court, having regard to the fact that the decision to request an advisory opinion had been made “taking into account the time constraint”, accelerated its procedure (…)
The Court rendered its Advisory Opinion on 26 April 1988. It began by engaging in a detailed review of the events that took place before and after the filing of the request for an advisory opinion, in order to determine whether there was, between the United Nations and the United States, a dispute of the type contemplated in the Headquarters Agreement.
In so doing, the Court pointed out that its sole task was to determine whether the United States was obliged to enter into arbitration under that Agreement, not to decide whether the measures adopted by the United States in regard to the PLO Observer Mission did or did not run counter to that Agreement.
The Court pointed out, inter alia, that the United States had stated that “it had not yet concluded that a dispute existed” between it and the United Nations “because the legislation in question had not been implemented”. Then, subsequently, referring to “the current dispute over the status of the PLO Observer Mission” it had expressed the view that arbitration would be premature.
After initiating litigation in its domestic courts, the United States, in its written statement, had informed the Court of its belief that arbitration would not be “appropriate or timely”. After saying that it could not allow considerations as to what might be “appropriate” to prevail over the obligations deriving from Section 21, the Court found that the opposing attitudes of the United Nations and the United States showed the existence of a dispute, whatever the date on which it might be deemed to have arisen.
It further qualified that dispute as a dispute concerning the application of the Headquarters Agreement, and then found that, taking into account the United States’ attitude, the Secretary-General had in the circumstances exhausted such possibilities of negotiation as were open to him, nor had any “other agreed mode of settlement” within the meaning of Section 21 of the Agreement been contemplated by the United Nations and the United States.
The Court accordingly concluded that the United States was bound to respect the obligation to enter into arbitration, under Section 21. In so doing, it recalled the fundamental principle of international law that international law prevailed over domestic law, a principle long endorsed by a body of judicial decisions.
Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal Advisory Opinion, 20 July 1982
Primary treaty interpreted: UN Charter
A former staff member of the United Nations Secretariat had challenged the Secretary-General’s refusal to pay him a repatriation grant unless he produced evidence of having relocated upon retirement. By a judgment of 15 May 1981, the United Nations Administrative Tribunal had found that the staff member was entitled to receive the grant and, therefore, to compensation for the injury sustained through its non-payment. The injury had been assessed at the amount of the repatriation grant of which payment had been refused.
The United States Government addressed an application for review of this judgment to the Committee on Applications for Review of Administrative Tribunal Judgements, and the Committee requested an advisory opinion of the Court on the correctness of the decision in question.
In its Advisory Opinion of 20 July 1982, the Court, after pointing out that a number of procedural and substantive irregularities had been committed, decided nevertheless to comply with the Committee’s request, whose wording it interpreted as really seeking a determination as to whether the Administrative Tribunal had erred on a question of law relating to the provisions of the United Nations Charter, or had exceeded its jurisdiction or competence. As to the first point, the Court said that its proper role was not to retry the case already dealt with by the Tribunal, and that it need not involve itself in the question of the proper interpretation of United Nations Staff Regulations and Rules further than was strictly necessary in order to judge whether the interpretation adopted by the Tribunal had been in contradiction with the provisions of the Charter. Having noted that the Tribunal had only applied what it had found to be the relevant Staff Regulations and Staff Rules made under the authority of the General Assembly, the Court found that the Tribunal had not erred on a question of law relating to the provisions of the Charter. As to the second point, the Court considered that the Tribunal’s jurisdiction included the scope of Staff Regulations and Rules and that it had not exceeded its jurisdiction or competence.
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt Advisory Opinion, 20 December 1980
Treaty interpreted: Agreement of 25 March 1951 between the World Health Organization and Egypt
Having considered a possible transfer from Alexandria of the World Health Organization’s Regional Office for the Eastern Mediterranean Region, the World Health Assembly in May 1980 submitted a request to the Court for an advisory opinion on the following questions :
“1. Are the negotiation and notice provisions of Section 37 of the Agreement of 25 March 1951 between the World Health Organization and Egypt applicable in the event that either party to the Agreement wishes to have the Regional Office transferred from the territory of Egypt ?
2. If so, what would be the legal responsibilities of both the World Health Organization and Egypt, with regard to the Regional Office in Alexandria, during the two-year period between notice and termination of the Agreement ?”
The Court expressed the opinion that, in the event of a transfer of the seat of the Regional Office to another country, the WHO and Egypt were under mutual obligation to consult together in good faith as to the conditions and modalities of the transfer, and to negotiate the various arrangements needed to effect the transfer with a minimum of prejudice to the work of the Organization and to the interests of Egypt.
The party wishing to effect the transfer had a duty, despite the specific period of notice indicated in the 1951 Agreement, to give a reasonable period of notice to the other party, and during this period the legal responsibilities of the WHO and of Egypt would be to fulfil in good faith their mutual obligations as set out above.
See Brölmann, “The Significance of the 1980 ICJ Advisory Opinion Interpretation of the Agreement of 25 March 1951 between the Who and Egypt” (2015) (paper available online). “The 1980 WHO Advisory Opinion constitutes a point of reference when it comes to enunciating the sources of obligations binding upon international organizations. It is also authoritative as it elaborates on the general legal obligations governing the relation between an organization and its host state – a relation which in this case possibly for the first time is framed by the Court as one between legal equals.”