human-rights

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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VI. ICJ cases where Parties Resolved the Dispute or Withdrew Applications Before the ICJ could make a Final Determination (1984 – 2017)

This post summarizes those situations where the parties withdrew the applications made to the ICJ requesting a judicial resolution of the disputes.

In some cases, the initiation of proceedings before the ICJ triggered the resolution of the immediate dispute or triggered discussions to resolve the dispute. In these cases, the ICJ played a constructive role resolving disputes in a peaceful manner.

For example, after parties ignited the proceedings and before the Court could decide on the merits of the case (1) in Timor-Leste v Australia, seized documents, which formed the subject matter of the dispute, were returned, after the initiation of proceedings, (2) in Ecuador v Colombia, parties agreed to create a joint negotiation commission to resolve the dispute, where previous negotiations had proved unsuccessful,  (3) in Belgium v. Switzerland, Switzerland provided assurances to preserve Belgium’s interests, (4) in the Lockerbie cases, parties negotiated a settlement outside the ICJ, which had for previous several years been difficult to reach, (4) in the Islamic Republic of Iran v. United States of America case relating to the shooting of an Iranian airbus, the parties settled on the payment of compensation, (5) Guinea-Bissau v. Senegal, parties entered into a “accord de gestion et de coopération”, (6) in Nauru vs Australia, the parties entered into a settlement on a dispute concerning the rehabilitation of certain phosphate lands mined under Australia, and (7) in Finland vs Denmark, the parties entered into negotiations, following the ICJ’s recommendation to do so on a dispute concerning a project relating to certain proposed constructions of Denmark across the strait of the Great Belt.

Some cases parties withdrew the cases, without providing for a reason, and it was not possible to find these reasons in the public domain. For example, (1) Congo v. France on a dispute relating to the immunity of its officials; (2) Honduras v. Brazil and (3) Commonwealth of Dominica v. Switzerland on disputes relating to diplomatic relations, (4) DRC’s cases against Rwanda and Burundi related to alleged unlawful use of force, (5) Nicaraguan cases against Honduras and Costa Rica, also on the border and trans-border use of force, and (6) Paraguay v. United States of America relating to consular protection of Paraguay nationals in the US.

This is the sixth 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 include, decisions on maritime time and territorial boundaries, and the use of force. These summaries are not intended to be comprehensive, but 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. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia).

The dispute concerned the seizure and detention, by Australia, of confidential documents and data of Timor Leste (click here for more details). Before the Court hearings, Australia and Timor Leste requested the Court to adjourn the hearing in order to enable them to seek an amicable settlement”. Timor-Leste claims that the items seized include documents and data containing correspondence between the Government of Timor-Leste and its legal advisers relating to a pending arbitration under the 2002 Timor Sea Treaty between Timor-Leste and Australia. On 03 March 2014, the ICJ indicated provisional measures requested by Timor-Leste and requested Australia, inter alia, to preserve the confidentiality of the documents. 

By letter of 25 March 2015, Australia, indicated its willingness to return the seized documents.

By an Order of 22 April 2015, the Court  ordered Australia to ensure that the confidentiality of the documents are preserved and that Australia does not interfere “in any way in communications between Timor Leste and its legal advisors… in connection with… any (legal) procedure between the two States (…)”.

By a letter of 2 June 2015, Timor-Leste informed the Court that it wished to discontinue the proceedings following the return of the documents and data. It held that, “[f]ollowing the return of the seized documents and data by Australia on 12 May 2015, Timor-Leste [has] successfully achieved the purpose of its Application to the Court, namely the return of Timor-Leste’s rightful property, and therefore implicit recognition by Australia that its actions were in violation of Timor-Leste’s sovereign rights”. Australia, also agreeing to the discontinuance stated that, “Australia’s request to return the material was an affirmation of [its] commitment to the peaceful settlement of the dispute in a constructive and positive manner in order to put it behind the Parties…(n)o other implication should be drawn from Australia’s actions”.

2. Aerial Herbicide Spraying (Ecuador v. Colombia).

The dispute concerning the alleged aerial spraying by Colombia of toxic herbicides at locations near, at and across its border with Ecuador. Ecuador stated that “the spraying has already caused serious damage to people, to crops, to animals, and to the natural environment on the Ecuadorian side of the frontier, and poses a grave risk of further damage over time” and that “repeated and sustained efforts” to negotiate proved unsuccessful.

By letters dated 12 September 2013, Ecuador and Colombia, called for the discontinuation of the case further to an agreement entered into by the parties (Agreement of 9 September 2013).

This Agreement of 9 September 2013 established, inter alia, “an exclusion zone, in which Colombia would not conduct aerial spraying operations, created a Joint Commission to ensure that spraying operations outside that zone had not caused herbicides to drift into Ecuador and, so long as they had not, provided a mechanism for the gradual reduction in the width of the said zone ; according to the letters, the Agreement set out operational parameters for Colombia’s spraying programme, recorded the agreement of the two Governments to ongoing exchanges of information in that regard, and established a dispute settlement mechanism.”

3. Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland)

On 21 December 2009, Belgium initiated proceedings against Switzerland in respect of a dispute concerning primarily the interpretation and application of the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters.  Belgium argued that Switzerland was breaching the Lugano Convention and other international obligations by virtue of the decision of its courts to refuse to recognize a decision in a Belgian court on the liability of the Swiss shareholders to the Belgian shareholders.

Between 4 February 2010 and 18 February 2011 the parties went through the motions of the process.

By a letter dated 21 March 2011, Belgium requested the Court to discontinue the proceedings because “Switzerland states . . . that the reference by the [Swiss] Federal Supreme Court in its 30 September 2008 judgment to the ‘non-recognizability’ of a future Belgian judgment does not have the force of res judicata and does not bind either the lower cantonal courts or the Federal Supreme Court itself, and that there is therefore nothing to prevent a Belgian judgment, once handed down, from being recognized in Switzerland in accordance with the applicable treaty provision”.

4. Certain Criminal Proceedings in France (Republic of the Congo v. France)

Excerpts of the summary of the ICJ:

“On 9 December 2002, the Republic of the Congo (DRC) filed an Application instituting proceedings against France seeking the annulment of the investigation and prosecution measures taken by the French judicial authorities further to a complaint concerning crimes against humanity and torture allegedly committed in the Congo against individuals of Congolese nationality filed by various human rights associations against the President of the Republic of the Congo, Mr. Denis Sassou Nguesso, the Congolese Minister of the Interior, General Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the Congolese Armed Forces, and General Blaise Adoua, Commander of the Presidential Guard. The Congo contended that, by  “attributing to itself universal jurisdiction in criminal matters and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State for crimes allegedly committed by him in connection with the exercise of his powers for the maintenance of public order in his country”,

France had violated “the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations . . . exercise its authority on the territory of another State”. The Congo further submitted that, in issuing a warrant instructing police officers to examine the President of the Republic of the Congo as witness in the case, France had violated “the criminal immunity of a foreign Head of State — an international customary rule recognized by the jurisprudence of the Court” (…).

(Although Congo requested for provisional measures,) the Court concluded that no evidence had been placed before it of any irreparable prejudice to the rights in dispute and that, consequently, circumstances were not such as to require the exercise of its power to indicate provisional measures (…).

Hearings were scheduled to open in the case on 6 December 2010, when, by a letter dated 5 November 2010, the Agent of the Congo, referring to Article 89 of the Rules of Court, informed the Court that his Government was “withdraw[ing] its Application instituting proceedings” and requested the Court “to make an Order officially recording the discontinuance of the proceedings and directing the removal of the case from the List”. (B)y an Order of 16 November 2010, the Court… ordered that the case be removed from the List.”

NB: Congo did not provide a reason for the withdrawal. See here a post on it by Dapo Akande.

5. Certain Questions concerning Diplomatic Relations (Honduras v. Brazil)

On 28 October 2009, Honduras, through its Ambassador  to the Netherlands, initiated proceedings against Brazil. Honduras alleged that Brazil had “breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations” and requested the Court “to adjudge and declare that Brazil does not have the right to allow the premises of its (Brazilian Diplomatic) Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens (which included the then recently deposed President of Honduras, who had sought shelter in the Embassy following a coup)…”.

For a background to the proceedings, see here and here.

By letter dated 28 October 2009, Honduras revoked the authority of its Ambassador in the Netherlands and appointed another official to represent Honduras at the proceedings. The Court decided that, given the circumstances, no other action would be taken in the case until further notice.

By a letter dated 30 April 2010, Honduras informed the Court that it withdraws its application, without providing any specific reasons. By Order on 12 May 2010 the Court ordered the case be removed from the List.

6. Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland)

On 26 April 2006, the Commonwealth of Dominica instituted proceedings against Switzerland concerning alleged violations by the latter of the Vienna Convention on Diplomatic Relations, as well of other international instruments and rules, with respect to a diplomatic envoy of Dominica to the United Nations in Geneva.

In its Application, the Commonwealth of Dominica asked the ICJ to “…decide and clarify whether the rights of a sovereign nation to select its envoys to the United Nations can be impaired by a host State and whether the host State can even withdraw the accreditation of an Acting Head of Mission claiming that an envoy is engaged in commercial activities outside the host State, and whether such change of diplomatic status can take place without even notifying, neither the sending State nor the United Nations.”

By letter of 15 May 2006, the Commonwealth of Dominica expressed its intention to discontinue proceedings.  On 9 June 2006, the Court ordered that the case be removed from the List. No reasons were provided for the withdrawal.

7. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States)

Excerpts of the summary of the ICJ:

“On 3 March 1992 the Libya initiated proceedings against the United States and the United Kingdom, in respect of a dispute over the interpretation and application of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23 September 1971, a dispute arising from acts resulting in the aerial incident that occurred over Lockerbie, Scotland, on 21 December 1988.

In its Applications, Libya referred to the charging and indictment of two Libyan nationals by a Grand Jury of the United States of America and by the Lord Advocate of Scotland, respectively, with having caused a bomb to be placed aboard Pan Am flight 103. The bomb subsequently exploded, causing the aeroplane to crash, all persons aboard being killed. Libya pointed out that (1) the acts alleged constituted an offence within the meaning of Article 1 of the Montreal Convention, which it claimed to be the only appropriate Convention in force between the Parties, and asserted that (2) it had fully complied with its own obligations under that instrument, Article 5 of which required a State to establish its own jurisdiction over alleged offenders present in its territory in the event of their non-extradition ; and that (3) there was no extradition treaty between Libya and the respective other Parties, so that Libya was obliged under Article 7 of the Convention to submit the case to its competent authorities for the purpose of prosecution. Libya contended that (4) the United States of America and the United Kingdom were in breach of the Montreal Convention through rejection of its efforts to resolve the matter within the framework of international law, including the Convention itself, in that (5) they were placing pressure upon Libya to surrender the two Libyan nationals for trial.

On 3 March 1992, Libya made two separate requests to the Court to indicate forthwith certain provisional measures, namely : (a) to enjoin the United States and the United Kingdom respectively from taking any action against Libya calculated to coerce or compel it to surrender the accused individuals to any jurisdiction outside Libya ; and (b) to ensure that no steps were taken that would prejudice in any way the rights of Libya with respect to the legal proceedings that were the subject of Libya’s Applications. On 14 April 1992, the Court read two Orders on those requests for the indication of provisional measures, in which it found that the circumstances of the cases were not such as to require the exercise of its powers to indicate such measures (…)

On 27 February 1998, the Court delivered two Judgments on the preliminary objections raised by the United Kingdom and the United States of America (…) It declared that it had jurisdiction on the basis of Article 14, paragraph 1, of that Convention to hear the disputes between Libya and the respondent States concerning the interpretation or application of the provisions of the Convention (…)

In June 1999, the Court authorized Libya to submit a Reply, and the United Kingdom and the United States to file Rejoinders. Those pleadings were filed by the Parties within the time-limits laid down by the Court and its President.

By two letters of 9 September 2003, the Governments of Libya and the United Kingdom on the one hand, and of Libya and the United States on the other, jointly notified the Court that they had “agreed to discontinue with prejudice the proceedings”. Following those notifications, the President of the Court, on 10 September 2003, made an Order in each case placing on record the discontinuance of the proceedings with prejudice, by agreement of the Parties, and directing the removal of the case from the Court’s List.””

NB: The letters to the ICJ does not specify the conditions under which the case was withdrawn. See here for the conditions agreed to by parties to resolve the issue, and a discussion as to why a negotiated settlement was reached. The settlement was linked to the removal of UN sanctions. Libyan government subequently paid compensation to the families of the Lockerbie victims. It also submitted a letter to the Security Council stating that “Libya, as a sovereign state, has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am flight and accepts responsibility for the actions of its officials.” Of the two accused, the Scottish Court, that was vested with jurisdiction to determine the case, concluded the guilt of one person. In 2015, Scottish investigators identified two further suspects.

 Recent attempts to reopen the Lockerbie case has been rejected by Libyan officials (02 August, 2017).

8. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi)

On 23 June 1999, the Democratic Republic of the Congo initiated proceedings against Burundi for “(…)acts of armed aggression perpetrated by Burundi on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.” It stated that “…such armed aggression by Burundian troops on Congolese territory has involved inter alia violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo, violations of international humanitarian law and massive human rights violations.” Congo sought (1) to secure the cessation of these acts of aggression; (2) reparation for acts of intentional destruction and looting; and (3) the restitution of national property and resources appropriated for the benefit of Burundi.

Burundi filed its memorial within the time limits fixed by the Court. The Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi. It also stated that it “reserved the right to invoke subsequently new grounds of jurisdiction of the Court”. The two cases were removed from the List on 30 January 2001.

9. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)

On 23 June 1999, the Democratic Republic of the Congo (DRC) initiated proceedings against Rwanda for “(…)acts of armed aggression perpetrated by Burundi on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.”   This has involved the violation of the sovereignty and territorial integrity of Congo, violations of international humanitarian law and massive human rights violations. Congo sought (1) to secure the cessation of the acts of aggression directed against it; (2) reparation for acts of intentional destruction and looting; and (3) the restitution of national property and resources appropriated for the benefit of Rwanda.

Burundi filed its memorial within the time limits fixed by the Court. The Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi. It also stated that it “reserved the right to invoke subsequently new grounds of jurisdiction of the Court”. The two cases were removed from the List on 30 January 2001.

10. Vienna Convention on Consular Relations (Paraguay v. United States of America)

On 3 April 1998, the Republic of Paraguay instituted proceedings against the United States of America in a dispute relating to a Paraguay national and concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963.

Excerpts of the summary of the ICJ:

“(…) Paraguay based the jurisdiction of the Court on Article 36, paragraph 1, of the Statute and on Article I of the Optional Protocol which accompanies the Vienna Convention on Consular Relations, and which gives the Court jurisdiction as regards the settlement of disputes arising out of the interpretation or application of that Convention.

In its Application, Paraguay indicated that, in 1992, the authorities of the Commonwealth of Virginia had arrested a Paraguayan national, charged and convicted him of culpable homicide and sentenced him to death without informing him of his rights as required by Article 36, paragraph 1 (b), of the Convention. Those rights included the right to request that the relevant consular office of the State of which he was a national be advised of his arrest and detention and the right to communicate with that office. It was further alleged by the Applicant that the authorities of the Commonwealth of Virginia had not advised the Paraguayan consular officers, who were therefore only able to render assistance to him from 1996, when the Paraguayan Government learned of the case by its own means. Paraguay asked the Court to adjudge and declare that the United States of America had violated its international legal obligations towards Paraguay and that the latter was entitled to “restitution in kind”.

The same day, 3 April 1998, Paraguay also submitted a request for the indication of provisional measures to ensure that the national concerned was not executed pending a decision by the Court. At a public hearing on 9 April 1998, the Court made an Order on the request for the indication of provisional measures submitted by Paraguay. The Court unanimously found that the United States of America should take all measures at its disposal to ensure that the Paraguayan national concerned was not executed pending the decision by the Court. By an Order the same day, the Vice-President, acting as President, having regard to the Court’s Order for the indication of provisional measures and the agreement of the Parties, fixed the time-limits for the filing of the Memorial and the Counter-Memorial. Paraguay filed its Memorial on 9 October 1998.

By letter of 2 November 1998, Paraguay indicated that it wished to discontinue the proceedings with prejudice. The United States of America concurred in the discontinuance on 3 November. On 10 November 1998, the Court therefore made an Order placing on record the discontinuance and directing the case to be removed from the List.”

11. Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America)

On 17 May 1989, Iran instituted proceedings against the United States of America.  Iran claimed, inter alia, that the United States had violated  the Convention on International Civil Aviation and the  Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, by (1) its destruction of an Iranian aircraft , causing the deaths of its 290 passengers and crew, (2) by refusing to compensate Iran for the damage caused and (3) by its continuous interference in aviation in the Persian Gulf.

By a letter dated 8 August 1994, the two Parties jointly informed the Court that the parties have entered into negotiations and to postpone the oral proceedings and then on 22 February 1996 they requested the Court to discontinue the proceedings because they had entered into a full and final settlement. Also in February 1996, the US agreed to pay Iran $61.8 million in compensation for the 248 Iranians killed, plus the cost of the aircraft and legal expenses. The US had already paid $40 million to the other countries whose nationals were killed.

Click here for the summary of the case in the ICJ website.

12. Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal)

On 12 March 1991 Guinea-Bissau initiated proceedings against Senegal in which the Court was asked to decide : “What should be, on the basis of the international law of the sea and of all the relevant elements of the case, including the future decision of the Court in the case concerning the Arbitral ‘award’ of 31 July 1989, the line (to be drawn on a map) delimiting all the maritime territories appertaining respectively to Guinea-Bissau and Senegal.” At this time, the above case concerning the Arbitral Award of 31 July 1989 was progressing before the Court.

Senegal objected to the admissibility of a fresh claim, and possibly to the Court’s jurisdiction and parties agreed that no measure should be taken in the case until the Court had delivered its decision in the Arbitral Award Case. The Court delivered its Judgment in that case on 12 November 1991.  In its judgment the Court stated that it was “highly desirable that the elements of the dispute that were not settled by the Arbitral Award of 31 July 1989 be resolved as soon as possible, as both Parties desire”. Subsequently, the parties entered into an “accord de gestion et de coopération” and they decided to discontinue the proceedings (…). On 8 November 1995 the Court made an Order to remove the case from the Court’s List.

13. Certain Phosphate Lands in Nauru (Nauru v. Australia)

On 19 May 1989 the Republic of Nauru initiated proceedings against Australia in respect of a dispute concerning the rehabilitation of certain phosphate lands mined under Australian administration before Nauruan independence.

In its Application, Nauru claimed that Australia had breached the trusteeship obligations it had accepted under Article 76 of the Charter of the United Nations and under the Trusteeship Agreement for Nauru of 1 November 1947. Nauru further claimed that Australia had breached certain obligations towards Nauru under general international law, more particularly with regard to the implementation of the principle of self-determination and of permanent sovereignty over natural wealth and resources. Australia was said to have incurred an international legal responsibility and to be bound to make restitution or other appropriate reparation to Nauru for the damage and prejudice suffered (See here).

The Court delivered its Judgment on 26 June 1992 on the several preliminary objections raised by Australia. This included an objection by Australia based on the fact that New Zealand and the United Kingdom were not parties to the proceedings. The Court held, inter alia, that

(…) it was in no way precluded from adjudicating upon the claims submitted to it, provided the legal interests of the third State which might possibly be affected did not form the actual subject-matter of the decision requested. Where the Court was so entitled to act, the interests of the third State which was not a party to the case were protected by Article 59 of the Statute (See here).

Australia filed its Counter-Memorial and the Court fixed the dates for the filing of a Reply by the Applicant and a Rejoinder by the Respondent.

On 9 September 1993, the two Parties deposited a joint notification and informed the Court that they had reached a settlement and have agreed to discontinue the proceedings. On 13 September 1993, the Court ordered the case to be removed from the General List.

14. Border and Transborder Armed Actions (Nicaragua v. Honduras)

On 28 July 1986, Nicaragua instituted proceedings against Honduras alleging violations of international law arising from certain military activities directed against the Nicaragua by the contras operating from Honduras. The violation specified included violations of Article 2 (4) of the UN Charter, Charter of the Organization of American States, Pact of Bogota and other customary law provision, including those that prohibited the threat or use of force in international relations.

In its Judgment of 20 December 1988, the Court concluded that it had jurisdiction to proceed and commenced the proceedings on the merits.

Nicaragua, by letter dated 11 May 1992, informed the Court that the Parties had reached an out-of-court agreement and as a result, has decided to “renounce all further rights of action based on the case”. The ICJ ordered the case to be removed from the General List on 27 May 1992.

15. Border and Transborder Armed Actions (Nicaragua v. Costa Rica)

On 28 July 1986, Nicaragua instituted proceedings against Costa Rica , respectively, alleging violations of international law arising from certain military activities directed against the Nicaragua by the contras operating from Honduras. The violation specified included violations of Article 2 (4) of the UN Charter, Charter of the Organization of American States, Pact of Bogota and other customary law provision, including those that prohibited the threat or use of force in international relations.

Nicaragua filed its Memorial on the merits on 10 August 1987 (see Memorial of Nicaragua). By a communication dated 12 August 1987, Nicaragua,declared that it was discontinuing the judicial proceedings instituted against Costa Rica.

The ICJ ordered that the case be removed from the General List on 19 August 1987.

16. Passage through the Great Belt (Finland v. Denmark)

On 17 May 1991 Finland instituted proceedings against Denmark in respect of a dispute concerning a project of Denmark to construct a fixed traffic connection for both road and rail traffic across the strait of the Great Belt, the effect of which would have been to “…permanently to close the Baltic for deep draught vessels of over 65 m height, thus preventing the passage of such drill ships and oil rigs manufactured in Finland as required more than that clearance.”  Finland argued that the Great Belt is a strait used for international navigation, that there is a right of free passage through the Great Belt.

The Court noted that “the existence of a right of Finland of passage through the Great Belt is not challenged, the dispute between the Parties being over the nature and extent of that right, including its applicability to certain drill ships and oil rigs.”

On 23 May 1991, Finland requested the Court to indicate certain provisional measures. The Court refused, but held that “pending a decision of the Court on the merits, any negotiation between the Parties with a view to achieving a direct and friendly settlement is to be welcomed.”

By letter dated 3 September 1992, Finland, “referring to the passage quoted above, stated that a settlement of the dispute had been attained and accordingly notified the Court of the discontinuance of the case by Finland.” The case was subsequently removed from the General List.

For the documents relating to this case, click here.