VII. ICJ cases where ICJ refused to proceed to merits of the case or to provide an advisory opinion (1984 – 2017)

This post summarizes those situations where the ICJ concluded that it did not have the relevant jurisdiction to decide on the issue presented before it, or to provide an advisory opinion. This was because, for example, one of the parties had made reservations to some treaties in a manner that did not allow the Court to exercise its jurisdiction, or because the preconditions for seizing the Court’s jurisdiction had not been met. Nevertheless, these cases are important because in coming to its conclusions, the Court also examines some salient principles of international law – for example, the scope of the right of international organizations to ask the Court for an advisory opinion, rights of third parties before the Court, and on matters relating to Statehood.

This is the seventh, and the final, 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 include, decisions on maritime time and territorial boundaries, the use of force, cases 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.

1. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)  Judgment of 1 April 2011

Excerpts of the summary provided in the ICJ website:

On 12 August 2008, Georgia instituted proceedings before the Court against the Russian Federation relating to “its actions on and around the territory of Georgia in breach of CERD [the 1965 International Convention on the Elimination of All Forms of Racial Discrimination]”. Georgia claimed that: “the Russian Federation, through its State organs, State agents, and other persons and entities exercising governmental authority, and through the South Ossetian and Abkhaz separatist forces and other agents acting on the instructions of, and under the direction and control of the Russian Federation, is responsible for serious violations of its fundamental obligations under CERD, including Articles 2, 3, 4, 5 and 6”.

According to Georgia, the Russian Federation “has violated its obligations under CERD during three distinct phases of its interventions in South Ossetia and Abkhazia”, in the period from 1990 to August 2008. Georgia requested the Court to order “the Russian Federation to take all steps necessary to comply with its obligations under CERD”. As a basis for the jurisdiction of the Court, Georgia relied on Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination.

Georgia’s Application was accompanied by a request for the indication of provisional measures in order “to preserve [its] rights under CERD to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries”…. The Court issued an Order on the request for the indication of provisional measures submitted by Georgia. The Court found that it had prima facie jurisdiction under Article 22 of CERD to deal with the case…

In its Judgment of 1 April 2011, the Court began by considering the Russian Federation’s first preliminary objection, according to which there had been no dispute between the Parties regarding the interpretation or application of CERD at the date Georgia filed its Application…. (The) Court concluded that the exchanges between the Georgian and Russian representatives (…) established that by that day, the day on which Georgia submitted its Application, there had been a dispute between Georgia and the Russian Federation about the latter’s compliance with its obligations under CERD as invoked by Georgia in the case. The first preliminary objection of the Russian Federation was accordingly dismissed.

In its second preliminary objection, the Russian Federation had argued that the procedural requirements of Article 22 of CERD for recourse to the Court had not been fulfilled. According to this provision, “[a]ny dispute between two or more States parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement”.

First of all, the Court noted that Georgia did not claim that, prior to seising the Court, it had used or attempted to use the procedures expressly provided for in CERD. The Court therefore limited its examination to the question of whether the precondition of negotiations had been fulfilled (…)

Accordingly, the Court assessed whether Georgia had genuinely attempted to engage in negotiations with the Russian Federation, with a view to resolving their dispute concerning the Russian Federation’s compliance with its substantive obligations under CERD. The Court noted that, were it to find that Georgia had genuinely attempted to engage in such negotiations with the Russian Federation, it would subsequently examine whether Georgia had pursued those negotiations as far as possible with a view to settling the dispute. To make that determination, the Court said that it needed to ascertain whether the negotiations had failed, become futile, or reached a deadlock before Georgia submitted its claim to the Court. After considering the Parties’ arguments on the question, the Court recalled its conclusions regarding the Russian Federation’s first preliminary objection, as it was directly connected to the Russian Federation’s second preliminary objection. The Court observed that negotiations had taken place between Georgia and the Russian Federation before the start of the relevant dispute. Those negotiations had involved several matters of importance to the relationship between Georgia and the Russian Federation, namely, the status of South Ossetia and Abkhazia, the territorial integrity of Georgia, the threat or use of force, the alleged breaches of international humanitarian law and of human rights law by Abkhaz or South Ossetian authorities and the role of the Russian Federation’s peacekeepers. However, in the absence of a dispute relating to matters falling under CERD prior to 9 August 2008, those negotiations could not be said to have covered such matters, and were thus of no relevance to the Court’s examination of the Russian Federation’s second preliminary objection. The Court accordingly concluded that neither requirement contained in Article 22 had been satisfied. Article 22 of CERD thus could not serve to found the Court’s jurisdiction in the case. The second preliminary objection of the Russian Federation was therefore upheld.

2. 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) Judgement 19 January 2009

Excerpts of the summary provided in the ICJ website:

On 5 June 2008, Mexico filed an Application instituting proceedings against the United States of America, requesting the Court to interpret paragraph 153 (9) of its Judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), in which it had laid down the remedial obligations incumbent upon the United States, namely “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences” of the Mexican nationals at issue in that case.

Mexico claimed that a dispute had arisen between the Parties as to the scope and meaning of paragraph 153 (9) and asked for an interpretation as to whether paragraph 153 (9) expressed an obligation of result and, pursuant to that obligation of result, requested the Court to order that the United States ensure that no Mexican national covered under the Avena Judgment would be executed unless and until the review and reconsideration was completed and it was determined that no prejudice resulted from the violation.

On the same day, Mexico also filed a Request for the indication of provisional measures (see more here).

(In its judgement) The Court stated that its interpretative jurisdiction was founded on Article 60 of the Court’s Statute, which provides that “[in] the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”. A key question which arose in this case was whether a dispute did in fact exist between the Parties as to the meaning or scope of paragraph 153 (9) of the Avena Judgment.

The United States argued that no dispute existed between it and Mexico for the purposes of Article 60, because the United States Executive Branch shared Mexico’s understanding that the Avena Judgment established an obligation of result (…).  (T)he Court concluded that “there would be a further obstacle to granting the request of Mexico even if a dispute in the present case were ultimately found to exist” (…)

The Court thus found that Mexico’s Request for interpretation dealt not with the “meaning or scope” of the Avena judgment as Article 60 required, but rather with “the general question of the effects of a judgment of the Court in the domestic legal order of the States parties to the case in which the judgment was delivered”. Thus, the Court considered that, “[b]y virtue of its general nature, the question underlying Mexico’s Request for interpretation is outside the jurisdiction specifically conferred upon the Court by Article 60” and that “[w]hether or not there is a dispute, it does not bear on the interpretation of the Avena Judgment, in particular of paragraph 153 (9).” The Court therefore concluded that it could not accede to Mexico’s Request for interpretation.

3. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Judgment, 3 February 2006.

Excerpts of the summary provided in the ICJ website:

On 28 May 2002, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court an Application instituting proceedings against Rwanda for “massive, serious and flagrant violations of human rights and international humanitarian law” resulting “from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of the sovereignty and territorial integrity [of the DRC], as guaranteed by the United Nations Charter and the Charter of the Organization of African Unity”.

The DRC stated in its Application that the Court’s jurisdiction to deal with the dispute between it and Rwanda “deriv[ed] from compromissory clauses” in many international legal instruments, such as the 1979 Convention on the Elimination on All Forms of Discrimination against Women, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the Constitution of the World Health Organization (WHO), the Constitution of UNESCO, the 1984 New York Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The DRC added that the jurisdiction of the Court also derived from the supremacy of peremptory norms (jus cogens), as reflected in certain international treaties and conventions, in the area of human rights.

On 28 May 2002, the date of the filing of the Application, the DRC also submitted a request for the indication of provisional measures, (which the Court refused, along with a request of Rwanda for the case to be removed from the List.)  (…)

In its Judgment of 3 February 2006, the Court ruled that it did not have jurisdiction to entertain the Application filed by the DRC. It found that the international instruments invoked by the DRC could not be relied on, either because Rwanda (1) was not a party to them (as in the case of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) or (2) had made reservations to them (as in the case of the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination of All Forms of Racial Discrimination), or because (3) other preconditions for the seising of the Court had not been satisfied (as in the case of the Convention on the Elimination of All Forms of Discrimination against Women, the Constitution of the WHO, the Constitution of UNESCO and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation).

Since the Court had no jurisdiction to entertain the Application, it was not required to rule on its admissibility. Mindful that the subject-matter of the dispute was very similar in nature to that in the case between the Congo and Uganda, and that the reasons as to why the Court would not proceed to an examination of the merits in the case between Congo and Rwanda needed to be carefully explained, the Court stated that it was precluded by a number of provisions in its Statute from taking any position on the merits of the claims made by the DRC.

It recalled, however, “that there is a fundamental distinction between the acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law”. Thus, “[w]hether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law”.

4. Certain Property (Liechtenstein v. Germany) Judgment, 10 February 2005

Excerpts of the summary provided in the ICJ website:

“By an Application filed in the Registry on 1 June 2001, Liechtenstein instituted proceedings against Germany relating to a dispute concerning “decisions of Germany, in and after 1998, to treat certain property of Liechtenstein nationals as German assets having been ‘seized for the purposes of reparation or restitution, or as a result of the state of war’ — i.e., as a consequence of World War II —, without ensuring any compensation for the loss of that property to its owners, and to the detriment of Liechtenstein itself”.

The historical context of the dispute was as follows. In 1945, Czechoslovakia confiscated certain property belonging to Liechtenstein nationals, including Prince Franz Josef II of Liechtenstein, pursuant to the “Beneš Decrees”, which authorized the confiscation of “agricultural property” (including buildings, installations and movable property) of “all persons belonging to the German and Hungarian people, regardless of their nationality”. A special regime with regard to German external assets and other property seized in connection with the Second World War was created under the Convention on the Settlement of Matters Arising out of the War and the Occupation (Chapter Six), signed in 1952 at Bonn. In 1991, a painting by the Dutch master Pieter van Laer was lent by a museum in Brno (Czechoslovakia) to a museum in Cologne (Germany) for inclusion in an exhibition. This painting had been the property of the family of the Reigning Prince of Liechtenstein since the eighteenth century ; it was confiscated in 1945 by Czechoslovakia under the Beneš Decrees. Prince Hans-Adam II of Liechtenstein, acting in his personal capacity, then filed a lawsuit in the German courts to have the painting returned to him as his property, but that action was dismissed on the ground that, under Article 3, Chapter Six, of the Settlement Convention (paragraphs 1 and 3 of which are still in force), no claim or action in connection with measures taken against German external assets in the aftermath of the Second World War was admissible in German courts. A claim brought by Prince Hans-Adam II before the European Court of Human Rights regarding the decisions of the German courts was also dismissed.

In its Application, Liechtenstein requested the Court (inter alia) “to adjudge and declare that Germany has incurred international legal responsibility and is bound to make appropriate reparation to Liechtenstein for the damage and prejudice suffered” (…) As a basis for the Court’s jurisdiction, Liechtenstein invoked Article I of the European Convention for the Peaceful Settlement of Disputes, signed at Strasbourg on 29 April 1957 (…).

The Court began by examining Germany’s first preliminary objection, which argued that the Court lacked jurisdiction because there was no dispute between the Parties. The Court rejected this objection, finding that there existed a legal dispute between the Parties, namely a dispute as to whether, by applying Article 3, Chapter Six, of the Settlement Convention to Liechtenstein property that had been confiscated by Czechoslovakia in 1945, Germany was in breach of the international obligations it owed to Liechtenstein and, if so, what was the extent of its international responsibility.

The Court then considered Germany’s second objection, which required it to decide, in the light of the provisions of Article 27 (a) of the European Convention for the Peaceful Settlement of Disputes, whether the dispute related to facts or situations that arose before or after 18 February 1980, the date on which that Convention entered into force between Germany and Liechtenstein. The Court noted in this respect that it was not contested that the dispute had been triggered by the decisions of the German courts in the aforementioned case. The critical issue, however, was not the date on which the dispute arose, but the date of the facts or situations in relation to which the dispute arose. In the Court’s view, the dispute brought before it could only relate to the events that transpired in the 1990s if, as argued by Liechtenstein, in that period, Germany had either departed from a previous common position that the Settlement Convention did not apply to Liechtenstein property, or if German courts, by applying their earlier case law under the Settlement Convention for the first time to Liechtenstein property, had applied that Convention “to a new situation” after the critical date. Having found that neither was the case, the Court concluded that, although these proceedings had been instituted by Liechtenstein as a result of decisions by German courts concerning a painting by Pieter van Laer, the events in question had their source in specific measures taken by Czechoslovakia in 1945, which had led to the confiscation of property owned by some Liechtenstein nationals, including Prince Franz Jozef II of Liechtenstein, as well as in the special regime created by the Settlement Convention, and that the source or real cause of the dispute was accordingly to be found in the Settlement Convention and the Beneš Decrees. The Court therefore upheld Germany’s second preliminary objection, finding that it could not rule on Liechtenstein’s claims on the merits.”

5. Legality of Use of Force (Serbia and Montenegro v. Belgium), (Serbia and Montenegro v. Germany), (Serbia and Montenegro v. France), (Serbia and Montenegro v. Italy), (Serbia and Montenegro v. Netherlands), (Serbia and Montenegro v. Portugal), (Serbia and Montenegro v. United Kingdom) and (Serbia and Montenegro v. Canada). Judgment of 15 December 2004, 

Excerpts of the summary provided in the ICJ website:

On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court.

On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures (which the Court denied).

In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental ; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute. The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute.

The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time (…) On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute.

The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.

In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access.

The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application.

At the end of its reasoning, the Court finally recalled that, irrespective of whether it has jurisdiction over a dispute, the parties “remain in all cases responsible for acts attributable to them that violate the rights of other States”

NB: In two of the cases (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court at the stage of indicating provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List.

6. Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras) Judgment, 18 December 2003.

Excerpts of the summary provided in the ICJ website:

“On 10 September 2002, El Salvador filed a request for revision of the Judgment delivered on 11 September 1992 by a Chamber of the Court in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua intervening) (…) It was the first time that an Application had been made seeking a revision of a judgment rendered by one of the Court’s Chambers… (but found that) none of the new facts alleged by El Salvador were “decisive factors” in relation to the Judgment of 11 September 1992, the Chamber held that it was unnecessary for it to ascertain whether the other conditions laid down by Article 61 of the Statute were satisfied.”

7. Aerial Incident of 10 August 1999 (Pakistan v. India) 

Excerpts of the summary provided in the ICJ website:

“On 21 September 1999, the Islamic Republic of Pakistan filed an Application instituting proceedings against the Republic of India in respect of a dispute concerning the destruction, on 10 August 1999, of a Pakistani aircraft (…)

In its Judgment of 21 June 2000 (on the preliminary objections), the Court noted that, to establish the jurisdiction of the Court, Pakistan had relied on (1) Article 17 of the General Act for Pacific Settlement of International Disputes, signed at Geneva on 26 September 1928, (2) on the declarations of acceptance of the compulsory jurisdiction of the Court made by the Parties and (3) on Article 36, paragraph 1, of the Statute. It considered those bases of jurisdiction in turn.

The Court pointed out first that, on 21 May 1931, British India had acceded to the General Act of 1928. It observed that India and Pakistan had held lengthy discussions on the question whether the General Act had survived the dissolution of the League of Nations and whether, if so, the two States had become parties to that Act on their accession to independence. Referring to a communication addressed to the United Nations Secretary-General of 18 September 1974, in which the Indian Government indicated that, since India’s accession to independence in 1947, they had “never regarded themselves as bound by the General Act of 1928 . . . whether by succession or otherwise”, the Court concluded that India could not be regarded as party to the said Act on the date the Application had been filed by Pakistan and that the Convention did not constitute a basis of jurisdiction. The Court then considered the declaration of acceptance of the compulsory jurisdiction of the Court made by the two States. It noted that India’s declaration contained a reservation under which “disputes with the government of any State which is or has been a member of the Commonwealth of Nations” was barred from its jurisdiction.

The Court recalled that its jurisdiction only existed within the limits within which it had been accepted and that the right of States to attach reservations to their declarations was a recognized practice. Consequently, Pakistan’s arguments to the effect that India’s reservation was “extra-statutory” or was obsolete could not be upheld. Pakistan being a member of the Commonwealth, the Court concluded that it did not have jurisdiction to deal with the Application on the basis of the declarations made by the two States.

Considering, thirdly, the final basis of jurisdiction relied on by Pakistan, namely Article 36, paragraph 1, of the Statute, according to which “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”, the Court indicated that neither the United Nations Charter nor Article 1 of the Simla Accord of 2 July 1972 between the Parties conferred jurisdiction upon it to deal with the dispute between them.

Lastly, the Court explained that there was “a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law” and that “the Court’s lack of jurisdiction [did] not relieve States of their obligation to settle their disputes by peaceful means”.”

8. Fisheries Jurisdiction (Spain v. Canada) Judgment, 4 December 1998

Excerpts of the summary provided in the ICJ website:

On 28 March 1995, Spain filed in the Registry of the Court an Application instituting proceedings against Canada with respect to a dispute relating to (inter alia) the Canadian Coastal Fisheries Protection Act, as amended on 12 May 1994 (…). Spain indicated, inter alia, that by the amended Act an attempt was made to impose on all persons on board foreign ships a broad prohibition on fishing in the Regulatory Area of the North-West Atlantic Fisheries Organization (NAFO), that is, on the high seas, outside Canada’s exclusive economic zone, while expressly permitting the use of force against foreign fishing boats in the zones that that Act terms the “high seas” (…)

As a basis of the Court’s jurisdiction, the Application referred to the declarations of Spain and of Canada made in accordance with Article 36, paragraph 2, of the Statute of the Court (…) In its Judgment of 4 December 1998, the Court found that the dispute between the Parties was a dispute that had “ar[isen]” out of “conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area” and “the enforcement of such measures”, and that, consequently, it was within the terms of one of the reservations in the Canadian declaration. The Court found that it therefore had no jurisdiction to adjudicate in the case.”

9. Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion, 8 July 1996

Excerpts of the summary provided in the ICJ website:

By a letter dated 27 August 1993, filed in the Registry on 3 September 1993, the Director-General of the World Health Organization officially communicated to the Registrar a decision taken by the World Health Assembly to submit to the Court the following question, set forth in resolution WHA46.40 adopted on 14 May 1993: “In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution ?”

The Court decided that the WHO and the member States of that organization entitled to appear before the Court were likely to be able to furnish information on the question, in accordance with Article 66, paragraph 2, of the Statute (…)

On 8 July 1996, the Court found that it was not able to give the advisory opinion requested by the World Health Assembly. It considered that three conditions had to be satisfied in order to found the jurisdiction of the Court when a request for advisory opinion was submitted to it by a specialized agency : (1) the agency requesting the opinion had to be duly authorized, under the Charter, to request opinions of the Court ; (2) the opinion requested had to be on a legal question ; and (3) that question had to be one arising within the scope of the activities of the requesting agency.

The first two conditions had been met. With regard to the third, however, the Court found that although according to its Constitution the WHO is authorized to deal with the health effects of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in, the question put to the Court in the present case related not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects.

The Court further pointed out that international organizations did not, like States, possess a general competence, but were governed by the “principle of speciality”, that is to say, they were invested by the States which created them with powers, the limits of which were a function of the common interests whose promotion those States entrusted to them.

Besides, the WHO was an international organization of a particular kind — a “specialized agency” forming part of a system based on the Charter of the United Nations, which was designed to organize international co-operation in a coherent fashion by bringing the United Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers.

The Court therefore concluded that the responsibilities of the WHO were necessarily restricted to the sphere of “public health” and could not encroach on the responsibilities of other parts of the United Nations system. There was no doubt that questions concerning the use of force, the regulation of armaments and disarmament were within the competence of the United Nations and lay outside that of the specialized agencies.

The Court accordingly found that the request for an advisory opinion submitted by the WHO did not relate to a question arising “within the scope of [the] activities” of that organization.”

The Court subsequently, in 1996, provided its advisory opinion on a similar question raised by the General Assembly.

10. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case

On 21 August 1995, the New Zealand made a “Request for an Examination of the Situation” based on a media statement in which France had stated that it will “conduct a final series of eight nuclear weapons tests in the South Pacific starting in September 1995”.  New Zealand stated that the “proposed action announced by France which will, if carried out, affect the basis of the Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests (New Zealand v. France) case”.

The relevant paragraph of the Nuclear Tests (New Zealand v. France), paragraph 63, stated as follows: “Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute . . .”

The Court, in its Order of 22 September 1995, found that,

“In the Court’s view that question has two elements. The first element concerns the courses of procedure envisaged by the Court in paragraph 63 of its 1974 Judgment, when it stated that “the Applicant could request an examination of the situation in accordance with the provisions of the Statute’; the other concerns the question whether the “basis” of that Judgment has been “affected” within the meaning of paragraph 63 thereof. In its examination of that question the Court found in the first place that by inserting in paragraph 63 the above-mentioned phrase, the Court did not exclude a special procedure for access to it (unlike those mentioned in the: Court’s Statute, like the filing of a new application, or a request for interpretation or revision, which would have been open to the Applicant in any event). Secondly, however, the Court found that that special procedure would only be available to the Applicant if circumstances were to arise which affected the basis of the 1974 Judgment. And that, it found, was not the case, as the basis of that Judgment was France’s undertaking not to conduct any further atmospheric nuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it.” (Press release 1995/29).

The current dispute related to a series of underground nuclear tests and not tests in the atmosphere. Click here for a summary of the order (ICJ). This article by Mackay (“Nuclear Testing: New Zealand and France in the International Court of Justice”) provides an interesting background to New Zealand’s position on this, and the 1974 case. This case was brought in the background of another case dealing with nuclear weapons, the General Assembly’s request for an Advisory Opinion on nuclear weapons, and there were links drawn between the two cases.

11. East Timor (Portugal v. Australia), Judgment of 30 June 1995.

On 22 February 1991, Portugal instituted proceedings against Australia concerning certain activities of Australia with respect to East Timor, in particular on the conclusion of a treaty between Australia and Indonesia which created a Zone of Co-operation in a maritime area between the Indonesian Province of East Timor and Northern Australia. Portugal contended that “Australia had by its conduct failed to observe the obligation to respect the duties and powers of Portugal as the Administering Power of East Timor and the right of the people of East Timor to self-determination…” The present proceedings were between Australia and Portugal, and Indonesia was not a party, and could not be compelled to become a party as it had not accepted the compulsory jurisdiction of the Court.

The Court, have examined three basis for jurisdiction presented by Portugal, concluded that, “It followed from all the foregoing considerations that the Court would necessarily first have to rule upon the lawfulness of Indonesia’s conduct. Indonesia’s rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State’s consent, which would run directly counter to the principle according to which “the Court can only exercise jurisdiction over a State with its consent”.” (See the summary provided in the ICJ website.)

12. Aegean Sea Continental Shelf (Greece v. Turkey)

 Summary provided in the ICJ website:

On 10 August 1976, Greece instituted proceedings against Turkey in a dispute over the Aegean Sea continental shelf. It asked the Court in particular to declare that the Greek islands in the area were entitled to their lawful portion of continental shelf and to delimit the respective parts of that shelf appertaining to Greece and Turkey.

At the same time, it requested provisional measures indicating that, pending the Court’s judgment, neither State should, without the other’s consent, engage in exploration or research with respect to the shelf in question.

On 11 September 1976, the Court found that the indication of such measures was not required and, as Turkey had denied that the Court was competent, ordered that the proceedings should first concern the question of jurisdiction.

In a Judgment delivered on 19 December 1978, the Court found that jurisdiction to deal with the case was not conferred upon it by either of the two instruments relied upon by Greece: the application of the General Act for Pacific Settlement of International Disputes (Geneva, 1928) — whether or not it was in force — was excluded by the effect of a reservation made by Greece upon accession, while the Greco-Turkish press communiqué of 31 May 1975 did not contain an agreement binding upon either State to accept the unilateral referral of the dispute to the Court.

13. Nuclear Tests (Australia v. France)

On 9 May 1973, Australia and New Zealand each instituted proceedings against France concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region.

According to the Court, the objective of Australia’s claim was that “Australia has sought to obtain from the French Republic a permanent undertaking to refrain from further atmospheric nuclear tests in the Pacific“, which the French had, until the initiation of the application, refused to provide.

France stated that it considered the Court manifestly to lack jurisdiction and refrained from appearing at the public hearings or filing any pleadings.

By Order of 22 June 1973, the Court, at the request of Australia, indicated provisional measures to the effect, inter alia , that pending judgment France should avoid nuclear tests causing radioactive fall-out on Australian territory.

On  20 December 1974, in its judgement on jurisdictional matters, the Court found that the Applications of Australia and New Zealand no longer had any object and that it was therefore not called upon to give any decision thereon.

This is because, France, by various public statements made in 1974, by France’s President and Ministers, including of Foreign Affairs and Defense, announced its intention, to cease the conduct atmospheric nuclear tests following the completion of the 1974 series of tests.

What is interesting is that Australia, who asked for “a permanent undertaking”, was not satisfied with these statements, and held that “(T)he recent French Presidential statement cannot be read as a firm, explicit and binding undertaking to refrain from further atmospheric tests.” It was Australia’s view that, despite of, and through, these statements, “the Government of France was reserving to itself the right to carry out atmospheric nuclear tests”.

Yet, the Court found that the objective of Australia has, in effect, been accomplished, in as much as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific. The Court held that the dispute has thus disappeared and the claim no longer has any object.

The important aspect of the judgement is its analysis of the legally binding nature of specific, unilateral declarations made by State authorities.

Firstly, the Court held that,

“There can be no doubt, in view of his functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State. His statements, and those of members of the French Government acting under his authority, up to the last statement made by the Minister of Defence (of 11 October 1974), constitute a whole. Thus, in whatever form these statements were expressed, they must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made. (para 49)”

Secondly, the Court held that,

“It is well recognized that (specific) declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations…When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being hence forth legally required to follow a course of conduct consistent with the declaration.

An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.

In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the state was made… (w)hether a statement is made orally or in writing makes no essential difference… Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.” (para 42 – 46)”

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