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V. ICJ Cases relating to the Law of the Sea, Maritime and Territorial Disputes, and Freedom of Navigation (1984 – 2017)

This is the fifth in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes will include, decisions on human rights/humanitarian law, immunities and consular rights, soverignty, treaty interpretation, on the use of force, cases where the ICJ refused to exercise its jurisdiction, or where proceedings were discontinued by parties. These summaries are not intended to be comprehensive. It is intended to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list is not yet comprehensive, and other cases will continue to be added.

1. Territorial and Maritime Dispute (Nicaragua v. Colombia) Judgment of 19 November 2012

Excerpts of the summary provided in the ICJ website:

On 6 December 2001, the Republic of Nicaragua filed an Application instituting proceedings against the Republic of Colombia in respect of a dispute concerning “a group of related legal issues subsisting” between the two States “concerning title to territory and maritime delimitation” (…) (The Court rejected requests for intervention by Costa Rica and Hungary).

In its Judgment rendered on the merits of the case on 19 November 2012, the Court found that the territorial dispute between the Parties concerned sovereignty over the features situated in the Caribbean Sea (…) (this section is further set out here).

With respect to Nicaragua’s claim for delimitation of a continental shelf extending beyond 200 nautical miles, the Court observed that “any claim of continental shelf rights beyond 200 miles [by a State party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)] must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf”. Given the object and purpose of UNCLOS, as stipulated in its Preamble, the fact that Colombia was not a party thereto did not relieve Nicaragua of its obligations under Article 76 of that Convention (…)

In order to effect the delimitation of the maritime boundary (within 200 nautical miles of the Nicaraguan coast), the Court first determined what the relevant coasts of the Parties were, namely those coasts the projections of which overlapped (…)

To effect the delimitation, the Court followed the three-stage procedure previously laid down by and employed in its jurisprudence.

First, it selected the base points and constructed a provisional median line between the Nicaraguan coast and the western coasts of the relevant Colombian islands opposite the Nicaraguan coast.

Second, the Court considered any relevant circumstances which might have called for an adjustment or shifting of the provisional median line so as to achieve an equitable result. It observed that the substantial disparity between the relevant Colombian coast and that of Nicaragua (approximately 1:8.2), and the need to avoid a situation whereby the line of delimitation cut off one or other of the Parties ties from maritime areas into which its coasts projected, constituted relevant circumstances. The Court noted that, while legitimate security concerns had to be borne in mind in determining what adjustment should be made to the provisional median line or in what way that line should be shifted, the conduct of the Parties, issues of access to natural resources and delimitations already effected in the area were not relevant circumstances in this case (…)

Third, and finally, the Court checked that, taking account of all the circumstances of the case, the delimitation thus obtained did not create a disproportionality that would render the result inequitable. The Court observed that the boundary line had the effect of dividing the relevant area between the Parties in a ratio of approximately 1:3.44 in Nicaragua’s favour, while the ratio of relevant coasts was approximately 1:8.2. It concluded that that line did not entail such disproportionality as to create an inequitable result.

NB: Nicaragua welcomed the judgement. However, the President of Colombo rejected it, stating that: “The borders between nations cannot be in the hands of a court of law,…They must be drawn by agreement between the countries involved.” He announced that Colombia will leave the 1948 Pact of Bogotá. Under Article XXXI of the Pact of Bogotá, parties recognize that it is bound by the compulsory jurisdiction of the ICJ in relation to the four matters specified therein. The judgement was delivered on 19 November 2012, Colombia expressed its intention to denounce the Pact on 27 November 2012.

The two countries continue to dispute over parts of the sea apportioned by the ICJ, and on 16 September 2016, and 26 November 2013, Nicaragua again submitted two applications before the ICJ asking it to settle the boundary beyond 200nm fixed by the 2012 judgement, and on a “dispute concern[ing] the violations of Nicaragua’s sovereign rights and maritime zones declared by the Court’s Judgment of 19 November 2012 and the threat of the use of force by Colombia in order to implement these violations.” Because the denunciation takes one year to come into effect, the Pact of Bogotá remained in force for Colombia until 27 November 2013. The Court upheld its jurisdiction to consider these cases. The Colombia President subsequently stated that Colombia will not accept a ruling by a third party and will not “participate” in the case. 

2. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) Judgement 13 July 2009

Excerpts of the summary provided in the ICJ website:

On 29 September 2005, Costa Rica filed an Application instituting proceedings against Nicaragua in a dispute concerning the navigational and related rights of Costa Rica on a section of the San Juan River, the southern bank of which forms the boundary between the two States provided for by an 1858 bilateral treaty. In its Application, Costa Rica affirmed that “Nicaragua has — in particular since the late 1990s — imposed a number of restrictions on the navigation of Costa Rican boats and their passengers on the San Juan River”, in violation of Article VI of the 1858 Treaty, which “granted to Nicaragua sovereignty over the waters of the San Juan River, recognizing at the same time important rights to Costa Rica” (…)

As regards Costa Rica’s navigational rights on the San Juan River under the 1858 Treaty, in that part where navigation is common, the Court ruled that Costa Rica had the right of free navigation on the San Juan River for purposes of commerce (and provided in detail these rights) (…) that Costa Rica had the right of navigation on the San Juan River with official vessels used solely, in specific situations, to provide essential services for the inhabitants of the riparian areas where expeditious transportation is a condition for meeting the inhabitants’ requirements; that Costa Rica did not have the right of navigation on the San Juan River with vessels carrying out police functions ; that Costa Rica did not have the right of navigation on the San Juan River for the purposes of the exchange of personnel among the police border posts along the right bank of the river or for the re-supply of these posts, with official equipment, including service arms and ammunition.

As regards Nicaragua’s right to regulate navigation on the San Juan River, in that part where navigation is common, the Court found that Nicaragua had the right to require Costa Rican vessels and their passengers to stop at the first and last Nicaraguan post on their route along the San Juan River; that Nicaragua had the right to require persons travelling on the San Juan River to carry a passport or an identity document ; that Nicaragua had the right to issue departure clearance certificates to Costa Rican vessels exercising Costa Rica’s right of free navigation but did not have the right to request the payment of a charge for the issuance of such certificates ; that Nicaragua had the right to impose timetables for navigation on vessels navigating on the San Juan River ; and that Nicaragua had the right to require Costa Rican vessels fitted with masts or turrets to display the Nicaraguan flag.

As regards subsistence fishing, the Court found that fishing by the inhabitants of the Costa Rican bank of the San Juan River for subsistence purposes from that bank must be respected by Nicaragua as a customary right.

As regards Nicaragua’s compliance with its international obligations under the 1858 Treaty, the Court found that Nicaragua was not acting in accordance with its obligations under the 1858 Treaty when it required persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation to obtain Nicaraguan visas; that Nicaragua was not acting in accordanc with its obligations under the 1858 Treaty when it required persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation to purchase Nicaraguan tourist cards; and that Nicaragua was not acting in accordance with its obligations under the 1858 Treaty when it required the operators of vessels exercising Costa Rica’s right of free navigation to pay charges for departure clearance certificates.”

3. Maritime Delimitation in the Black Sea (Romania v. Ukraine) Judgement 03 February 2009

Excerpts of the summary provided in the ICJ website:

On 16 September 2004, Romania filed an Application instituting proceedings against Ukraine in respect of a dispute concerning “the establishment of a single maritime boundary between the two States in the Black Sea, thereby delimiting the continental shelf and the exclusive economic zones appertaining to them” (…)

On the basis of established State practice and of its own jurisprudence, the Court declared itself bound by the three-step approach laid down by maritime delimitation law, which consisted (1) first of establishing a provisional equidistance line, (2) then of considering factors which might call for an adjustment of that line and adjusting it accordingly and, (3) finally, of confirming that the line thus adjusted would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas.

In keeping with this approach, the Court first established a provisional equidistance line. In order to do so, it was obliged to determine appropriate base points. After examining at length the characteristics of each base point chosen by the Parties for the establishment of the provisional equidistance line, the Court decided to use the Sacalin Peninsula and the landward end of the Sulina dyke on the Romanian coast, and Tsyganka Island, Cape Tarkhankut and Cape Khersones on the Ukrainian coast. It considered it inappropriate to select any base points on Serpents’ Island (belonging to Ukraine). The Court then proceeded to establish the provisional equidistance line (…)

The Court then turned to the examination of relevant circumstances which might call for an adjustment of the provisional equidistance line, considering six potential factors : (1) the possible disproportion between coastal lengths ; (2) the enclosed nature of the Black Sea and the delimitations already effected in the region ; (3) the presence of Serpents’ Island in the area of delimitation ; (4) the conduct of the Parties (oil and gas concessions, fishing activities and naval patrols) ; (5) any potential curtailment of the continental shelf or exclusive economic zone entitlement of one of the Parties ; and (6) certain security considerations of the Parties. The Court did not see in these various factors any reason that would justify the adjustment of the provisional equidistance line. In particular with respect to Serpents’ Island, it considered that it should have no effect on the delimitation other than that stemming from the role of the 12-nautical-mile arc of its territorial sea.

Finally, the Court confirmed that the line would not lead to an inequitable result by comparing the ratio of coastal lengths with the ratio of relevant maritime areas. The Court noted that the ratio of the respective coastal lengths for Romania and Ukraine was approximately 1:2.8 and the ratio of the relevant maritime areas was approximately 1:2.1.

The new maritime boundary determined by the ICJ indicated in a purple line (@bbc). The two countries agreed to be bound by the purple boundary line.

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4. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Judgement 8 October 2007

Excerpts of the summary provided in the ICJ website:

“On 8 December 1999, the Republic of Nicaragua filed an Application instituting proceedings against the Republic of Honduras in respect of a dispute concerning the delimitation of the maritime zones appertaining to each of those States in the Caribbean Sea (…)

In respect of sovereignty over the islands of Bobel Cay, Savanna Cay, Port Royal Cay and South Cay, located in the area in dispute, the Court concluded that it had not been established that either Honduras or Nicaragua had title to those islands by virtue of uti possidetis juris. Having then sought to identify any post-colonial effectivités, the Court found that sovereignty over the islands belonged to Honduras, as it had shown that it had applied and enforced its criminal and civil law, had regulated immigration, fisheries activities and building activity and had exercised its authority in respect of public works there.

As for the delimitation of the maritime areas between the two States, the Court found that no established boundary existed along the 15th parallel on the basis of either uti possidetis juris or a tacit agreement between the Parties. It thus proceeded to determine the delimitation itself. (For the methodology used by the ICJ in the delimitation, click here) (…)

The Court further instructed the Parties to negotiate in good faith with a view to agreeing on the course of a line between the present endpoint of the land boundary and the starting-point of the maritime boundary thus determined. In respect of the endpoint of the maritime boundary, the Court stated that the line which it had drawn continued until it reached the area where the rights of certain third States might be affected.”

NB: Both Honduras and Nicaragua agreed to abide by the decision of the Court.

5. Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment, 6 November 2003 on freedom of navigation.

Excerpts of the summary provided in the ICJ website:

“On 2 November 1992, the Islamic Republic of Iran filed in the Registry of the Court an Application instituting proceedings against the United States of America with respect to the destruction of Iranian oil platforms. The Islamic Republic founded the jurisdiction of the Court upon a provision of the Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States, signed at Tehran on 15 August 1955. In its Application, Iran alleged that the destruction caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, constituted a fundamental breach of various provisions of the Treaty of Amity and of international law (…)

The Court delivered its Judgment on 6 November 2003. Iran had contended that, in attacking on two occasions and destroying three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, the United States had violated freedom of commerce between the territories of the Parties as guaranteed by the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran. It sought reparation for the injury thus caused. The United States had argued in its counter-claim that it was Iran which had violated the 1955 Treaty by attacking vessels in the Gulf and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the United States and Iran. The United States likewise sought reparation.

(On the Court’s ruling on self defense, click here).

The Court then examined the issue of whether the United States, in destroying the platforms, had impeded their normal operation, thus preventing Iran from enjoying freedom of commerce “between the territories of the two High Contracting Parties” as guaranteed by the 1955 Treaty (Art. X, para. 1). It concluded that, as regards the first attack, the platforms attacked were under repair and not operational, and that at that time there was thus no trade in crude oil from those platforms between Iran and the United States. Accordingly, the attack on those platforms could not be considered as having affected freedom of commerce between the territories of the two States.

The Court reached the same conclusion in respect of the later attack on two other complexes, since all trade in crude oil between Iran and the United States had been suspended as a result of an embargo imposed by an Executive Order adopted by the American authorities. The Court thus found that the United States had not breached its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty and rejected Iran’s claim for reparation.

In regard to the United States counter-claim, the Court, after rejecting the objections to jurisdiction and admissibility raised by Iran, considered whether the incidents attributed by the United States to Iran infringed freedom of commerce or navigation between the territories of the Parties as guaranteed by Article X, paragraph 1, of the 1955 Treaty. The Court found that none of the ships alleged by the United States to have been damaged by Iranian attacks was engaged in commerce or navigation between the territories of the two States. Nor did the Court accept the generic claim by the United States that the actions of Iran had made the Persian Gulf unsafe for shipping, concluding that, according to the evidence before it, there was not, at the relevant time, any actual impediment to commerce or navigation between the territories of Iran and the United States. The Court accordingly rejected the United States counter-claim for reparation.”

6. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment, 10 October 2002

On 29 March 1994, Cameroon initiated proceedings against Nigeria with respect to the question of sovereignty over the Bakassi Peninsula, and requested the Court to determine the land and maritime frontier between the two States. A summary of the case is provided here.

7. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment, 16 March 2001.

On questions relating to jurisdiction, as it relates to what constitutes a treaty establishing the jurisdiction of the Court, see here.

Excerpts of the summary provided in the ICJ website:

“On 8 July 1991, Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect of certain disputes between the two States relating to sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at Jaradah and the delimitation of their maritime areas. (…)

In its Judgment of 16 March 2001, the Court, after setting out the procedural background in the case, recounted the complex history of the dispute. It noted that Bahrain and Qatar had concluded exclusive protection agreements with Great Britain in 1892 and 1916 respectively, and that that status of protected States had ended in 1971. The Court further cited the disputes which had arisen between Bahrain and Qatar on the occasion, inter alia, of the granting of concessions to oil companies, as well as the efforts made to settle those disputes.

The Court first considered the Parties’ claims to Zubarah. It stated that, in the period after 1868, the authority of the Sheikh of Qatar over Zubarah had been gradually consolidated, that it had been acknowledged in the Anglo-Ottoman Convention of 29 July 1913 and definitively established in 1937. It further stated that there was no evidence that members of the Naim tribe had exercised sovereign authority on behalf of the Sheikh of Bahrain within Zubarah. Accordingly, it concluded that Qatar had sovereignty over Zubarah.

Turning to the Hawar Islands, the Court stated that the decision by which the British Government had found in 1939 that those islands belonged to Bahrain did not constitute an arbitral award, but that did not mean that it was devoid of legal effect. It noted that Bahrain and Qatar had consented to Great Britain settling their dispute at the time and found that the 1939 decision must be regarded as a decision that was binding from the outset on both States and continued to be so after 1971. Rejecting Qatar’s arguments that the decision was null and void, the Court concluded that Bahrain had sovereignty over the Hawar Islands.

The Court observed that the British decision of 1939 did not mention Janan Island, which it considered as forming a single island with Hadd Janan. It pointed out, however, that in letters sent in 1947 to the Rulers of Qatar and Bahrain, the British Government had made it clear that “Janan Island is not regarded as being included in the islands of the Hawar group”. The Court considered that the British Government, in so doing, had provided an authoritative interpretation of its 1939 decision, an interpretation which revealed that it regarded Janan as belonging to Qatar. Accordingly, Qatar had sovereignty over Janan Island, including Hadd Janan.

The Court then turned to the question of the maritime delimitation. It recalled that international customary law was the applicable law in the case and that the Parties had requested it to draw a single maritime boundary. In the southern part, the Court had to draw a boundary delimiting the territorial seas of the Parties, areas over which they enjoyed territorial sovereignty (including sea-bed, superjacent waters and superjacent aerial space). In the northern part, the Court had to make a delimitation between areas in which the Parties had only sovereign rights and functional jurisdiction (continental shelf, exclusive economic zone).

With respect to the territorial seas, the Court considered that it had to draw provisionally an equidistance line (a line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each of the two States is measured) and then to consider whether that line must be adjusted in the light of any special circumstances. As the Parties had not specified the baselines to be used, the Court recalled that, under the applicable rules of law, the normal baseline for measuring the breadth of the territorial sea was the low-water line along the coast. It observed that Bahrain had not included a claim to the status of archipelagic State in its formal submissions and that the Court was therefore not requested to take a position on that issue. In order to determine what constituted the Parties’ relevant coasts, the Court first had to establish which islands came under their sovereignty. Bahrain had claimed to have sovereignty over the islands of Jazirat Mashtan and Umm Jalid, a claim which had not been contested by Qatar. As to Qit’at Jaradah, the nature of which was disputed, the Court held that it should be considered as an island because it was above water at high tide ; the Court added that the activities which had been carried out by Bahrain were sufficient to support its claim of sovereignty over the island. With regard to low-tide elevations, the Court, after noting that international treaty law was silent on the question whether those elevations should be regarded as “territory”, found that low-tide elevations situated in the overlapping area of the territorial seas of both States could not be taken into consideration for the purposes of drawing the equidistance line. That was true of Fasht ad Dibal, which both Parties regarded as a low-tide elevation. The Court then considered whether there were any special circumstances which made it necessary to adjust the equidistance line in order to obtain an equitable result. It found that there were such circumstances which justified choosing a delimitation line passing on the one hand between Fasht al Azm and Qit’at ash Shajarah and, on the other, between Qit’at Jaradah and Fasht ad Dibal.

In the northern part, the Court, citing its case law, followed the same approach, provisionally drawing an equidistance line and examining whether there were circumstances requiring an adjustment of that line. The Court rejected Bahrain’s argument that the existence of certain pearling banks situated to the north of Qatar, and which were predominantly exploited in the past by Bahraini fishermen, constituted a circumstance justifying a shifting of the line. It also rejected Qatar’s argument that there was a significant disparity between the coastal lengths of the Parties calling for an appropriate correction. The Court further stated that considerations of equity required that the maritime formation of Fasht al Jarim should have no effect in determining the boundary line.”

8. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) Judgment, 14 June 1993

Excerpts of the summary provided in the ICJ website:

On 16 August 1988, the Government of Denmark filed in the Registry an Application instituting proceedings against Norway, by which it seised the Court of a dispute concerning the delimitation of Denmark’s and Norway’s fishing zones and continental shelf areas in the waters between the east coast of Greenland and the Norwegian island of Jan Mayen, where both Parties laid claim to an area of some 72,000 square kilometres.

On 14 June 1993, the Court delivered its Judgment (…)

The Court examined separately the two strands of the applicable law : the effect of Article 6 of the 1958 Convention, applicable to the delimitation of the continental shelf boundary, and then the effect of the customary law which governed the fishery zone. After examining the case law in this field and the provisions of the 1982 United Nations Convention on the Law of the Sea, the Court noted that the statement (in those provisions) of an “equitable solution” as the aim of any delimitation process reflected the requirements of customary law as regards the delimitation both of the continental shelf and of exclusive economic zones.

It appeared to the Court that, both for the continental shelf and for the fishery zones in the instant case, it was proper to begin the process of delimitation by a median line provisionally drawn, and it then observed that it was called upon to examine every particular factor in the case which might suggest an adjustment or shifting of the median line provisionally drawn. The 1958 Convention required the investigation of any “special circumstances” ; the customary law based upon equitable principles for its part required the investigation of the “relevant circumstances”.

The Court found that, although it was a matter of categories which were different in origin and in name, there was inevitably a tendency towards assimilation between the two types of circumstances.

The Court then turned to the question whether the circumstances of the instant case required adjustment or shifting of the median line. To that end it considered a number of factors. With regard to the disparity or disproportion between the lengths of the “relevant coasts”, alleged by Denmark, the Court concluded that the striking difference in lengths of the relevant coasts constituted a special circumstance within the meaning of Article 6, paragraph 1, of the 1958 Convention. Similarly, as regards the fishery zones, the Court was of the opinion that the application of the median line led to manifestly inequitable results.

The Court concluded therefrom that the median line should be adjusted or shifted in such a way as to effect a delimitation closer to the coast of Jan Mayen.

The Court then considered certain circumstances that might also affect the position of the boundary line, i.e., access to resources, essentially fishery resources (capelin), particularly with regard to the presence of ice ; population and economy ; questions of security ; conduct of the Parties. Among those factors, the Court only retained the one relating to access to resources, considering that the median line was too far to the west for Denmark to be assured of equitable access to the capelin stock. It concluded that, for that reason also, the median line had to be adjusted or shifted eastwards. Lastly, the Court proceeded to define the single line of delimitation (…)

9. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) Judgment, 11 September 1992

Excerpts of the summary provided in the ICJ website:

On 11 December 1986, El Salvador and Honduras notified to the Court a Special Agreement whereby the Parties requested the Court to form a Chamber (…) in order to (1) delimit the frontier line in the six sectors not delimited by the 1980 General Treaty of Peace concluded between the two States in 1980 and (2) determine the legal situation of the islands in the Gulf of Fonseca and the maritime spaces within and outside it (…)

In November 1989, Nicaragua addressed to the Court an Application under Article 62 of the Statute for permission to intervene in the case (…) (this was permitted, see Judgment of 13 September 1990)

The Chamber began by noting the agreement of both Parties that the fundamental principle for determining the land area is the uti possidetis juris, i.e., the principle, generally accepted in Spanish America, that international boundaries follow former colonial administrative boundaries. The Chamber was, moreover, authorized to take into account, where pertinent, a provision of the 1980 Peace Treaty that a basis for delimitation is to be found in documents issued by the Spanish Crown or any other Spanish authority during the colonial period, and indicating the jurisdictions or limits of territories, as well as other evidence and arguments of a legal, historical, human or any other kind. Noting that the Parties had invoked the exercise of government powers in the disputed areas and of other forms of effectivités, the Chamber considered that it might have regard to evidence of action of this kind affording indications of the uti possidetis juris boundary. The Chamber then considered successively, from west to east, each of the six disputed sectors of the land boundary, to which some 152 pages were specifically devoted.

With regard to the legal situation of the islands in the Gulf, the Chamber considered that, although it had jurisdiction to determine the legal situation of all the islands, a judicial determination was required only for those in dispute, which it found to be El Tigre, Meanguera and Meanguerita. It rejected Honduras’s claim that there was no real dispute as to El Tigre. Noting that in legal theory each island appertained to one of the Gulf States by succession from Spain, which precluded acquisition by occupation, the Chamber observed that effective possession by one of the States could constitute a post-colonial effectivité shedding light on the legal situation. Since Honduras had occupied El Tigre since 1849, the Chamber concluded that the conduct of the Parties accorded with the assumption that El Tigre appertained to it. The Chamber found Meanguerita, which is very small, uninhabited and contiguous to Meanguera, to be a “dependency” of Meanguera. It noted that El Salvador had claimed Meanguera in 1854 and that from the late nineteenth century the presence there of El Salvador had intensified, as substantial documentary evidence of the administration of Meanguera by El Salvador showed. A protest in 1991 by Honduras to El Salvador over Meanguera was considered too late to affect the presumption of acquiescence by Honduras. The Chamber thus found that Meanguera and Meanguerita appertained to El Salvador.

With regard to the legal situation of the islands in the Gulf, the Chamber considered that, although it had jurisdiction to determine the legal situation of all the islands, a judicial determination was required only for those in dispute, which it found to be El Tigre, Meanguera and Meanguerita. It rejected Honduras’s claim that there was no real dispute as to El Tigre. Noting that in legal theory each island appertained to one of the Gulf States by succession from Spain, which precluded acquisition by occupation, the Chamber observed that effective possession by one of the States could constitute a post-colonial effectivité shedding light on the legal situation. Since Honduras had occupied El Tigre since 1849, the Chamber concluded that the conduct of the Parties accorded with the assumption that El Tigre appertained to it. The Chamber found Meanguerita, which is very small, uninhabited and contiguous to Meanguera, to be a “dependency” of Meanguera. It noted that El Salvador had claimed Meanguera in 1854 and that from the late nineteenth century the presence there of El Salvador had intensified, as substantial documentary evidence of the administration of Meanguera by El Salvador showed. A protest in 1991 by Honduras to El Salvador over Meanguera was considered too late to affect the presumption of acquiescence by Honduras. The Chamber thus found that Meanguera and Meanguerita appertained to El Salvador.

With respect to the maritime spaces within the Gulf, El Salvador claimed that they were subject to a condominium of the three coastal States and that delimitation would hence be inappropriate ; Honduras argued that within the Gulf there was a community of interests necessitating a judicial delimitation. Applying the normal rules of treaty interpretation to the Special Agreement and the Peace Treaty, the Chamber found that it had no jurisdiction to effect a delimitation, whether inside or outside the Gulf. As for the legal situation of the waters of the Gulf, the Chamber noted that, given its characteristics, the Gulf was generally acknowledged to be a historic bay. The Chamber examined the history of the Gulf to discover its “régime”, taking into account the 1917 Judgment of the Central American Court of Justice in a case between El Salvador and Nicaragua concerning the Gulf. In its Judgment, the Central American Court had found inter alia that the Gulf was a historic bay possessing the characteristics of a closed sea. Noting that the coastal States continued to claim the Gulf as a historic bay with the character of a closed sea, a position in which other nations acquiesced, the Chamber observed that its views on the régime of the historic waters of the Gulf coincided with those expressed in the 1917 Judgment. It found that the Gulf waters, other than the three-mile maritime belt, were historic waters and subject to the joint sovereignty of the three coastal States. It noted that there had been no attempt to divide the waters according to the principle of uti possidetis juris. A joint succession of the three States to the maritime area thus seemed to be the logical outcome of the uti possidetisprinciple. The Chamber accordingly found that Honduras had legal rights in the waters up to the bay closing line, which it considered also to be a baseline.

Regarding the waters outside the Gulf, the Chamber observed that entirely new concepts of law, unthought of when the Central American Court gave its Judgment in 1917, were involved, in particular those regarding the continental shelf and the exclusive economic zone, and found that, excluding a strip at either extremity corresponding to the maritime belts of El Salvador and Nicaragua, the three joint sovereigns were entitled, outside the closing line, to a territorial sea, continental shelf and exclusive economic zone, but must proceed to a division by mutual agreement. Lastly, as regards the effect of the Judgment on the intervening State, the Chamber found that it was not res judicata for Nicaragua.

NB: In 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), on 10 September 2002, El Salvador filed a request for revision of the Judgment delivered on 11 September 1992 by seeking a revision of the course of the boundary decided by the Court for the sixth disputed sector of the land boundary between El Salvador and Honduras. 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.

The Chamber accordingly considered, based on the are version of facts presented by El Salvador, whether the 1992 Chamber might have reached different conclusions if it had had before it the new versions of these documents produced by El Salvador.

” It concluded that this was not the case. The new versions in fact confirmed the conclusions reached by the Chamber in 1992 and were thus not “decisive factors”. Having 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.” (The summary provided in the ICJ website).

10. Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) Judgment, 12 November 1991

Summary provided in the ICJ website:

On 23 August 1989, Guinea-Bissau instituted proceedings against Senegal, on the basis of the declarations made by both States under Article 36, paragraph 2, of the Statute. Guinea-Bissau explained that, notwithstanding the negotiations pursued from 1977 onwards, the two States had been unable to reach a settlement of a dispute concerning the maritime delimitation to be effected between them. Consequently they had jointly consented, by an Arbitration Agreement dated 12 March 1985, to submit that dispute to an Arbitration Tribunal composed of three members. Guinea-Bissau indicated that, according to the terms of Article 2 of that Agreement, the Tribunal had been asked to rule on the following twofold question :

“1. Does the Agreement concluded by an exchange of letters [between France and Portugal] on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal ?

2. In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal respectively ?”

Guinea-Bissau added that it had been specified, in Article 9 of the Agreement, that the Tribunal would inform the two Governments of its decision regarding the questions set forth in Article 2, and that that decision should include the drawing of the frontier line on a map. According to the Application, the Tribunal communicated to the Parties on 31 July 1989 a “text that was supposed to serve as an award” but did not in fact amount to one. Guinea-Bissau asserted that the decision was inexistent as the majority of two arbitrators (against one) that had voted in favour of the text was no more than apparent given that one of the two arbitrators — in fact the President of the Tribunal — was said to have “expressed a view in contradiction with the one apparently adopted by the vote”, in a declaration appended thereto. Subsidiarily, Guinea-Bissau maintained that the Award was null and void, as the Tribunal had failed, in various ways (see explanation below) to accomplish the task assigned to it by the Agreement. By an Order dated 12 February 1990, the Court dismissed a request for the indication of provisional measures presented by Guinea-Bissau.

It delivered its Judgment on 12 November 1991. The Court first considered its jurisdiction, and, in particular, found that Guinea-Bissau’s declaration contained no reservation, but that the declaration of Senegal, which replaced a previous declaration of 3 May 1985, provided among other things that it was applicable only to “all legal disputes arising after the present declaration . . .”. As the Parties agreed that only the dispute relating to the Award rendered by the Tribunal (which arose after the Senegalese declaration) was the subject of the proceedings before the Court and that it should not be seen as an appeal from the Award, or as an application for revision of it, the Court accordingly regarded its jurisdiction as established. It then rejected, inter alia, Senegal’s contention that Guinea-Bissau’s Application, or the arguments used in support of it, amounted to an abuse of process. With regard to Guinea-Bissau’s contention that the Award was inexistent, the Court considered that the view expressed by the President of the Tribunal in his declaration constituted only an indication of what he considered would have been a better course. His position therefore could not be regarded as standing in contradiction with the position adopted by the Award. The Court accordingly dismissed the contention of Guinea-Bissau that the Award was inexistent for lack of a real majority.

The Court then examined the question of the nullity of the Award, as Guinea-Bissau had observed that the Tribunal had not replied to the second question put in Article 2 of the Arbitration Agreement and had not appended to the Award the map provided for in Article 9 of that Agreement. According to Guinea-Bissau, those two omissions constituted an excès de pouvoir. It was further asserted that no reasons had been given by the Tribunal for its decision. With regard to the absence of a reply to the second question, the Court recognized that the structure of the Award was, in that respect, open to criticism, but concluded that the Award was not flawed by any failure to decide. The Court then observed that the Tribunal’s statement of reasoning, while succinct, was clear and precise, and concluded that the second contention of Guinea-Bissau must also be dismissed. With regard to the validity of the reasoning adopted by the Tribunal on the issue of whether it was required to answer the second question, the Court recalled that an international tribunal normally had the right to decide as to its own jurisdiction and the power to interpret for that purpose the instruments which governed that jurisdiction. It observed that Guinea-Bissau was in fact criticizing the interpretation in the Award of the provisions of the Arbitration Agreement which determine the Tribunal’s jurisdiction, and proposing another interpretation. Further to a detailed consideration of Article 2 of the Arbitration Agreement, it concluded that the Tribunal had not acted in manifest breach of its competence to determine its own jurisdiction by deciding that it was not required to answer the second question except in the event of a negative answer to the first. Then, with respect to the argument of Guinea-Bissau that the answer given by the Tribunal to the first question was a partially negative answer and that this sufficed to satisfy the prescribed condition for entering into the second question, the Court found that the answer given achieved a partial delimitation, and that the Tribunal had thus been able to find, without manifest breach of its competence, that its answer to the first question was not a negative one. The Court concluded that, in this respect also, the contention of Guinea-Bissau that the entire Award was a nullity must be rejected. It considered moreover that the absence of a map could not in this case constitute such an irregularity as would render the Award invalid.

11. Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment, 3 June 1985

Summary provided in the ICJ website:

This case, which was submitted to the Court in 1982 by Special Agreement between Libya and Malta, related to the delimitation of the areas of continental shelf appertaining to each of these two States. In support of its argument, Libya relied on the principle of natural prolongation and the concept of proportionality. Malta maintained that States’ rights over areas of continental shelf were now governed by the concept of distance from the coast, which was held to confer a primacy on the equidistance method of defining boundaries between areas of continental shelf, particularly when these appertained to States lying directly opposite each other, as in the case of Malta and Libya. The Court found that, in view of developments in the law relating to the rights of States over areas of continental shelf, there was no reason to assign a role to geographical or geophysical factors when the distance between the two States was less than 400 miles (as in the instant case). It also considered that the equidistance method did not have to be used and was not the only appropriate delimitation technique. The Court defined a number of equitable principles and applied them in its Judgment of 3 June 1985, in the light of the relevant circumstances. It took account of the main features of the coasts, the difference in their lengths and the distance between them. It took care to avoid any excessive disproportion between the continental shelf appertaining to a State and the length of its coastline, and adopted the solution of a median line transposed northwards over a certain distance. In the course of the proceedings, Italy applied for permission to intervene, claiming that it had an interest of a legal nature under Article 62 of the Statute. The Court found that the intervention requested by Italy fell, by virtue of its object, into a category which — on Italy’s own showing — was one which could not be accepted, and the Application was accordingly refused.

12. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) Judgment, 12 October 1984

Summary provided in the ICJ website:

On 25 November 1981, Canada and the United States notified to the Court a Special Agreement whereby they referred to a Chamber of the Court the question of the delimitation of the maritime boundary dividing the continental shelf and fisheries zones of the two Parties in the Gulf of Maine area.

This Chamber was constituted by an Order of 20 January 1982, and it was the first time that a case had been heard by an ad hoc Chamber of the Court.

The Chamber delivered its Judgment on 12 October 1984. Having established its jurisdiction and defined the area to be delimited, it reviewed the origin and development of the dispute and laid down the principles and rules of international law governing the issue. It indicated that the delimitation was to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographical configuration of the area and the other relevant circumstances, an equitable result. It rejected the delimitation lines proposed by the Parties, and defined the criteria and methods which it considered to be applicable to the single delimitation line which it was asked to draw. It applied criteria of a primarily geographical nature, and used geometrical methods appropriate both for the delimitation of the sea-bed and for that of the superjacent waters (...for the technical information on how the Court delimited the area, see here). The co-ordinates of the line drawn by the Chamber are given in the operative part of the Judgment.

13. Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Judgment, 24 February 1982

Summary provided in the ICJ website:

By a Special Agreement notified to the Court in 1978, it was asked to determine what principles and rules of international law were applicable to the delimitation as between Tunisia and the Libyan Arab Jamahiriya of the respective areas of continental shelf appertaining to each.

After considering arguments as well as evidence based on geology, physiography and bathymetry on the basis of which each party sought to support its claims to particular areas of the sea-bed as the natural prolongation of its land territory, the Court concluded, in a Judgment of 24 February 1982, that the two countries abutted on a common continental shelf and that physical criteria were therefore of no assistance for the purpose of delimitation.

Hence it had to be guided by “equitable principles” (as to which it emphasized that this term cannot be interpreted in the abstract, but only as referring to the principles and rules which may be appropriate in order to achieve an equitable result) and by certain factors such as the necessity of ensuring a reasonable degree of proportionality between the areas allotted and the lengths of the coastlines concerned.

The Court found that the application of the equidistance method could not, in the particular circumstances of the case, lead to an equitable result. With respect to the course to be taken by the delimitation line, it distinguished two sectors (see the judgement for technical information)

During the course of the proceedings, Malta requested permission to intervene (and the request was rejected by the Court) (…).

14. Aegean Sea Continental Shelf (Greece v. Turkey) Judgment, 19 December 1978

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.

15. Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment, 3 February 1994

Excerpts of the summary provided in the ICJ website:

(…) The Court delivered its Judgment on 3 February 1994. It began by observing that Libya considered that there was no existing boundary, and had asked the Court to determine one, while Chad considered that there was an existing boundary, and had asked the Court to declare what that boundary was.

The Court then referred to the lines claimed by Chad and by Libya, as illustrated in sketch-map No. 1 reproduced in the Judgment (see below p. 146) ; Libya’s claim was on the basis of a coalescence of rights and titles of the indigenous inhabitants, the Senoussi Order, the Ottoman Empire, Italy and Libya itself ; while that of Chad was on the basis of a Treaty of Friendship and Good Neighbourliness concluded by France and Libya on 10 August 1955, or, alternatively, on French effectivités, either in relation to, or independently of, the provisions of earlier treaties.

The Court noted that it had been recognized by both Parties that the 1955 Treaty between France and Libya was the logical starting-point for consideration of the issues before the Court. Neither Party questioned the validity of the 1955 Treaty, nor did Libya question Chad’s right to invoke against Libya any such provisions thereof as related to the frontiers of Chad. One of the matters specifically addressed was the question of frontiers, dealt with in Article 3 and Annex I.

The Court pointed out that if the 1955 Treaty did result in a boundary, this furnished the answer to the issues raised by the Parties. Article 3 of the Treaty provided that France and Libya recognized that the frontiers between, inter alia, the territories of French Equatorial Africa and the territory of Libya were those that resulted from a number of international instruments in force on the date of the constitution of the United Kingdom of Libya and reproduced in Annex I to the Treaty.

In the view of the Court, the terms of the Treaty signified that the Parties thereby recognized complete frontiers between their respective territories as resulting from the combined effect of all the instruments listed in Annex I. By entering into the Treaty, the Parties recognized the frontiers to which the text of the Treaty referred ; the task of the Court was thus to determine the exact content of the undertaking entered into.

The Court specified in that regard that there was nothing to prevent the Parties from deciding by mutual agreement to consider a certain line as a frontier, whatever the previous status of that line. If it was already a territorial boundary, it was confirmed purely and simply.

It was clear to the Court that — contrary to what was contended by the Libyan Arab Jamahiriya — the Parties had agreed to consider the instruments listed as being in force for the purpose of Article 3, since otherwise they would not have included them in the Annex.

Having concluded that the Contracting Parties wished, by the 1955 Treaty, to define their common frontier, the Court considered what that frontier was (see here for the Court’s determination in defining the boundary).

The Court then described the line resulting from those relevant international instruments. Considering the attitudes adopted subsequently by the Parties with regard to their frontiers, it reached the conclusion that the existence of a determined frontier had been accepted and acted upon by the Parties (…).

For an analysis see here.

16. Frontier Dispute (Burkina Faso/Republic of Mali) Judgment, 22 December 1986

Summary provided in the ICJ website:

On 14 October 1983 Burkina Faso (then known as Upper Volta) and Mali notified to the Court a Special Agreement referring to a Chamber of the Court the question of the delimitation of part of the land frontier between the two States. This Chamber was constituted by an Order of 3 April 1985. Following grave incidents between the armed forces of the two countries at the very end of 1985, both Parties submitted parallel requests to the Chamber for the indication of interim measures of protection. The Chamber indicated such measures by an Order of 10 January 1986.

In its Judgment delivered on 22 December 1986, the Chamber began by ascertaining the source of the rights claimed by the Parties. It noted that, in that case, the principles that ought to be applied were the principle of the intangibility of frontiers inherited from colonization and the principle of uti possidetis juris, which accords pre-eminence to legal title over effective possession as a basis of sovereignty, and whose primary aim is to secure respect for the territorial boundaries which existed at the time when independence was achieved. The Chamber specified that, when those boundaries were no more than delimitations between different administrative divisions or colonies all subject to the same sovereign, the application of the principle of uti possidetis juris resulted in their being transformed into international frontiers, as in the instant case.

It also indicated that it would have regard to equity infra legem, that is, that form of equity which constitutes a method of interpretation of the law and which is based on law. The Parties also relied upon various types of evidence to give support to their arguments, including French legislative and regulative texts or administrative documents, maps and “colonial effectivités” or, in other words, the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period. Having considered those various kinds of evidence, the Chamber defined the course of the boundary between the Parties in the disputed area. The Chamber likewise took the opportunity to point out, with respect to the tripoint Niger-Mali-Burkina Faso, that its jurisdiction was not restricted simply because the endpoint of the frontier lay on the frontier of a third State not a party to the proceedings. It further pointed out that the rights of Niger were in any event safeguarded by the operation of Article 59 of the Statute of the Court.

 

 

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IV. ICJ Cases Relating to Sovereignty, Sovereign Equality, Non-Intervention, Statehood, and Consular and Diplomatic Relations (1984 – 2017)

This is the fourth in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes will include, decisions on maritime time and territorial boundaries, on the use of force, cases where the ICJ refused to exercise its jurisdiction, or where proceedings were discontinued by parties. These summaries are not intended to be comprehensive. It is intended to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list is not yet comprehensive, and other cases will continue to be added.

1. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Summary of Order 3 March 2014

Excerpts of the summary provided in the ICJ website:

On 17 December 2013 Timor-Leste instituted proceedings against Australia with regard to the seizure and subsequent detention “by Agents of Australia of documents, data and other property which belongs to Timor-Leste and/or which Timor-Leste has the right to protect under international law”. Timor-Leste contends that these items were seized in the offices of one of its legal advisers… allegedly under a warrant (…)

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 17 December 2013 Timor-Leste also filed a request for the indication of provisions measures in order to protect its rights and to prevent the use of the seized documents and data by Australia against its interests and rights in the pending arbitration and with regard to other matters relating to the Timor Sea and its resources (…)

Those hearings did not take place, however, the Parties having requested the Court, by a joint letter of 1 September 2014, “to adjourn the hearing . . . in order to enable them to seek an amicable settlement”.

Several months later, in a letter of 25 March 2015, Australia indicated that it “wished to return the materials removed from the premises of Collaery Lawyers on 3 December 2013, which are the subject of the present proceedings”….

By an Order of 22 April 2015, the Court authorized the return of the documents and data in question, and any copies thereof.

(NB: In this Order, the held that: “the right to communicate with its counsel and lawyers in a confidential manner with regard to issues forming the subject matter of pending arbitral proceedings or negotiations is derived from the principle of sovereign equality of States, reflected in article 2(1) of the UN Charter and must be preserved when States are involved in a peaceful settlement of a dispute.)

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) (…)”

2.  Territorial and Maritime Dispute (Nicaragua v. Colombia) Judgment of 19 November 2012

Excerpts of the summary provided in the ICJ website:

On 6 December 2001, the Republic of Nicaragua filed an Application instituting proceedings against the Republic of Colombia in respect of a dispute concerning “a group of related legal issues subsisting” between the two States “concerning title to territory and maritime delimitation” (…)

The Court then observed that, under the terms of the 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, Colombia not only had sovereignty over the islands of San Andrés, Providencia and Santa Catalina, but also over other islands, islets and reefs “forming part” of the San Andrés Archipelago. Thus, in order to address the question of sovereignty, the Court first needed to ascertain what constituted the San Andrés Archipelago.

It concluded, however, that neither the 1928 Treaty nor the historical documents conclusively established the composition of that Archipelago. The Court therefore examined the arguments and evidence not based on the composition of the Archipelago under the 1928 Treaty.

It found that neither Nicaragua nor Colombia had established that it had title to the disputed maritime features by virtue of uti possidetis juris (the principle that, upon independence, new States inherit the territories and boundaries of the former colonial provinces), because nothing clearly indicated whether these features were attributed to the colonial provinces of Nicaragua or of Colombia. The Court then considered whether sovereignty could be established on the basis of State acts manifesting a display of authority on a given territory (effectivités).

It regarded it as having been established that for many decades Colombia had continuously and consistently acted à titre de souverain in respect of the maritime features in dispute. This exercise of sovereign authority had been public and there was no evidence that it had met with any protest from Nicaragua prior to 1969, when the dispute had crystallized.

Moreover, the evidence of Colombia’s acts of administration with respect to the islands was in contrast to the absence of any evidence of acts à titre de souverain on the part of Nicaragua. The Court also noted that, while not being evidence of sovereignty, Nicaragua’s conduct with regard to the maritime features in dispute, the practice of third States and maps afforded some support to Colombia’s claim.

The Court concluded that Colombia, and not Nicaragua, had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla (….)

3. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Judgement 03 February 2012

Italian Courts permitted civil claims to be brought against Germany based on violations of international humanitarian law committed by Germany from 1943 – 1945 against Italian citizens. Italian courts also permitted the enforcement of a judgement of the Greek courts in Italy against Germany and took measures of constraint against a German property in Italy. The question before the Court was whether Italy’s actions violated the customary international law right of jurisdictional immunity of Germany. The Court held that Italy violated its obligation to respect Germany’s immunity under international law by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945, by declaring enforceable in Italy decisions of Greek courts and by taking measures of constraint against German property in Italy. The Court requested Italy to enact  legislation, or resort to other methods of its choosing, to ensure that the decisions of its courts and those of other judicial authorities infringing the immunity which Germany enjoys under international law cease to have effect. For summary see blog post in this website here.

For summary provided in the ICJ website click here.

4. Accordance with international law of the unilateral declaration of independence in respect of Kosovo – Request for Advisory Opinion  Advisory Opinion 22 July 2010

Excerpts of the summary provided in the ICJ website:

On 8 October 2008, the General Assembly decided to ask the Court to render an advisory opinion on the following question : “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law ?

(…) In its Advisory Opinion delivered on 22 July 2010, the Court concluded that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law” (…) It also concluded that it was not required by the question posed to decide whether international law conferred a positive entitlement upon Kosovo to declare independence ; rather, it had to determine whether a rule of international law prohibited such a declaration.

The Court first sought to determine whether the declaration of independence was in accordance with general international law. It noted that State practice during the eighteenth, nineteenth and early twentieth centuries “points clearly to the conclusion that international law contained no prohibition of declarations of independence”. In particular, the Court concluded that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. It also determined that no general prohibition of declarations of independence could be deduced from Security Council resolutions condemning other declarations of independence, because those declarations of independence had been made in the context of an unlawful use of force or a violation of a jus cogens norm. The Court thus concluded that the declaration of independence in respect of Kosovo had not violated general international law.

The Court then considered whether the declaration of independence was in accordance with Security Council resolution 1244 of 10 June 1999. It concluded that the object and purpose of that resolution was to establish “a temporary, exceptional legal régime which . . . superseded the Serbian legal order . . . on an interim basis”. It then examined the identity of the authors of the declaration of independence. An analysis of the content and form of the declaration, and of the context in which it was made, led the Court to conclude that its authors were not the Provisional Institutions of Self-Government, but rather “persons who acted together in their capacity as representatives of the people of Kosovo outside the framework of the interim administration”.

The Court concluded that the declaration of independence did not violate resolution 1244 for two reasons. First, it emphasized the fact that the two instruments “operate on a different level” : resolution 1244 was silent on the final status of Kosovo, whereas the declaration of independence was an attempt to finally determine that status.

Second, it noted that resolution 1244 imposed only very limited obligations on non-State actors, none of which entailed any prohibition of a declaration of independence.

Finally, in view of its conclusion that the declaration of independence did not emanate from the Provisional Institutions of Self-Government of Kosovo, the Court held that its authors were not bound by the Constitutional Framework established under resolution 1244, and thus that the declaration of independence did not violate that framework (the Court had previously found that “the reference to the “Provisional Institutions of Self-Government of Kosovo” in the question put by the General Assembly did not prevent it from deciding for itself whether the declaration of independence had been promulgated by that body or another entity.”)

Consequently, the Court concluded that the adoption of the declaration of independence had not violated any applicable rule of international law.

On 9 September 2010, the General Assembly adopted a resolution in which it acknowledged the content of the advisory opinion of the Court (…).”

5. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Judgment of 23 May 2008

Excerpts of the summary provided in the ICJ website:

“On 24 July 2003, Malaysia and Singapore jointly seised the Court of a dispute between them by notification of a Special Agreement signed on 6 February 2003 and which entered into force on 9 May 2003. Under the terms of that Special Agreement, the Parties requested the Court to “determine whether sovereignty over : (a) Pedra Branca/Pulau Batu Puteh ; (b) Middle Rocks ; and (c) South Ledge belongs to Malaysia or the Republic of Singapore”. They agreed in advance “to accept the Judgment of the Court . . . as final and binding upon them”.

In that Judgment, the Court first indicated that the Sultanate of Johor (predecessor of Malaysia) had original title to Pedra Branca/Pulau Batu Puteh, a granite island on which Horsburgh lighthouse stands. It concluded, however, that, when the dispute crystallized (1980), title had passed to Singapore, as attested to by the conduct of the Parties (in particular certain acts performed by Singapore à titre de souverain and the failure of Malaysia to react to the conduct of Singapore). The Court consequently awarded sovereignty over Pedra Branca/Pulau Batu Puteh to Singapore. As for Middle Rocks, a maritime feature consisting of several rocks permanently above water, the Court observed that the particular circumstances which had led it to find that sovereignty over Pedra Branca/Pulau Batu Puteh rested with Singapore clearly did not apply to Middle Rocks. It therefore found that Malaysia, as the successor to the Sultan of Johor, should be considered to have retained original title to Middle Rocks. Finally, with respect to the low-tide elevation South Ledge, the Court noted that it fell within the apparently overlapping territorial waters generated by Pedra Branca/Pulau Batu Puteh and by Middle Rocks. Recalling that it had not been mandated by the Parties to delimit their territorial waters, the Court concluded that sovereignty over South Ledge belongs to the State in whose territorial waters it lies.”

6. Frontier Dispute (Benin/Niger) Judgment, 12 July 2005

Excerpts of the summary provided in the ICJ website:

“On 3 May 2002, Benin and Niger, by joint notification of a Special Agreement signed on 15 June 2001 at Cotonou and which entered into force on 11 April 2002, seised the Court of a dispute concerning “the definitive delimitation of the whole boundary between them”. Under the terms of Article 1 of that Special Agreement, the Parties agreed to submit their frontier dispute to a Chamber of the Court, formed pursuant to Article 26, paragraph 2, of the Statute (…)

(…The Camber) stated that this (the applicable law) included the principle of the intangibility of the boundaries inherited from colonization, or the principle of uti possidetis juris, whose “primary aim is . . . securing respect for the territorial boundaries at the moment when independence is achieved”. The Chamber found that, on the basis of this principle, it had to determine in the case the boundary that had been inherited from the French administration. It noted that “the Parties agreed that the dates to be taken into account for this purpose were those of their respective independence, namely 1 and 3 August 1960”.

The Chamber then considered the course of the boundary in the River Niger sector. It first examined the various regulative or administrative acts invoked by the Parties in support of their respective claims and concluded that “neither of the Parties has succeeded in providing evidence of title on the basis of [those] acts during the colonial period”. In accordance with the principle that, where no legal title exists, the effectivités “must invariably be taken into consideration”, the Chamber then proceeded to examine the evidence presented by the Parties regarding the effective exercise of authority on the ground during the colonial period, in order to determine the course of the boundary in the River Niger sector and to indicate to which of the two States each of the islands in the river belonged, in particular the island of Lété. (…)”

(On more information relating to the boundary determination, click here.)

7. Avena and Other Mexican Nationals (Mexico v. United States of America) Judgment, 31 March 2004

Excerpts of the summary provided in the ICJ website:

” On 9 January 2003, Mexico brought a case against the United States of America in a dispute concerning alleged violations of Articles 5 and 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to 54 Mexican nationals (which was later amended to 52) who had been sentenced to death in certain states of the United States. At the same time as its Application, Mexico also submitted a request for the indication of provisional measures, among other things so that the United States would take all measures necessary to ensure that no Mexican national was executed and no action was taken that might prejudice the rights of Mexico or its nationals with regard to any decision the Court might render on the merits of the case. (The Court held that the United States should take all measures to ensure that the three individuals were not executed pending final judgement).

Ruling on the merits of the case, (…) the Court held that the United States was under an obligation to provide consular information pursuant to Article 36, paragraph 1 (b), of the Vienna Convention in respect of all 52 Mexican nationals. Regarding the meaning to be given to the phrase “without delay” in Article 36 (1) (b), the Court further held that there is an obligation to provide consular information as soon as it is realized that the arrested person is a foreign national, or that there are grounds for thinking that he is probably a foreign national.

The Court found that, in all of the cases except one, the United States had violated its obligation to provide the required consular information. Taking note of the interrelated nature of the three subparagraphs (a), (b) and (c) of paragraph 1 of Article 36 of the Vienna Convention, the Court then went on to find that the United States had, in 49 cases, also violated the obligation to enable Mexican consular officers to communicate with, have access to and visit their nationals and, in 34 cases, to arrange for their legal representation.

In relation to Mexico’s arguments concerning paragraph 2 of Article 36 and the right of its nationals to effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (1), the Court found that, in view of its failure to revise the procedural default rule since the Court’s decision in the LaGrand case, the United States had in three cases violated paragraph 2 of Article 36, although the possibility of judicial re-examination was still open in the 49 other cases.

In regard to the legal consequences of the proven violations of Article 36 and to Mexico’s requests for restitutio in integrum, through the partial or total annulment of convictions and sentences, the Court pointed out that what international law required was reparation in an adequate form, which in this case meant review and reconsideration by United States courts of the Mexican nationals’ convictions and sentences. The Court considered that the choice of means for review and reconsideration should be left to the United States, but that it was to be carried out by taking account of the violation of rights under the Vienna Convention. After recalling that the process of review and reconsideration should occur in the context of judicial proceedings, the Court stated that the executive clemency process was not sufficient in itself to serve that purpose, although appropriate clemency procedures could supplement judicial review and reconsideration. Contrary to Mexico’s claims, the Court found no evidence of a regular and continuing pattern of breaches of Article 36 by the United States. The Court moreover recognized the efforts of the United States to encourage compliance with the Vienna Convention, and took the view that that commitment provided a sufficient guarantee and assurance of non-repetition as requested by Mexico.

The Court further observed that, while the present case concerned only Mexican nationals, that should not be taken to imply that its conclusions did not apply to other foreign nationals finding themselves in similar situations in the United States. Finally, the Court recalled that the United States had violated paragraphs 1 and 2 of Article 36 in the case of the three Mexican nationals concerned by the Order of 5 February 2003 indicating provisional measures, and that no review and reconsideration of conviction and sentence had been carried out in those cases. The Court considered that it was therefore for the United States to find an appropriate remedy having the nature of review and reconsideration according to the criteria indicated in the Judgment.”

8. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) Judgment, 17 December 2002

Excerpts of the summary provided in the ICJ website:

“On 2 November 1998, the Republic of Indonesia and Malaysia jointly notified the Court of a Special Agreement between the two States (…under which) they requested the Court to determine (…) to which of the two States sovereignty over Pulau Ligitan and Pulau Sipadan belonged (…)”

(NB: In its judgment, the Court sought to determine whether Indonesia or Malaysia had a treaty-based title, obtained title by way of  succession, by way of transfer, or by virtue of the effectivités cited by them (i.e. whether claims to sovereignty were based on activities evidencing an actual, continued exercise of authority over the islands, i.e., the intention and will to act as sovereign). The Court held that title could not be established by means other than effectivités.)

“The Court noted that: “the activities relied upon by Malaysia . . . [we]re modest in number but . . . they [we]re diverse in character and include[d] legislative, administrative and quasi-judicial acts. They cover[ed] a considerable period of time and show[ed] a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands.” The Court further stated that “at the time when these activities were carried out, neither Indonesia nor its predecessor, the Netherlands, [had] ever expressed its disagreement or protest”. The Court concluded, on the basis of the above-mentioned effectivités, that sovereignty over Pulau Ligitan and Pulau Sipadan belonged to Malaysia.”

Related articles can be found here (AMJIL)and here (ICLQ).

9. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment, 10 October 2002

On 29 March 1994, Cameroon initiated proceedings against Nigeria with respect to the question of sovereignty over the Bakassi Peninsula, and requested the Court to determine the land and maritime frontier between the two States. The Court’s jurisdiction was established based on compulsory jurisdiction.

Excerpts of the summary provided in the ICJ website:

“(…) In its Application, Cameroon referred to “an aggression by the Federal Republic of Nigeria, whose troops are occupying several Cameroonian localities on the Bakassi Peninsula”, and asked the Court, inter alia, to adjudge and declare that sovereignty over the Peninsula of Bakassi was Cameroonian, by virtue of international law, and that Nigeria had violated and was violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris), as well as other rules of conventional and customary international law, and that Nigeria’s international responsibility was involved. Cameroon also requested the Court to proceed to prolong the course of its maritime boundary with Nigeria up to the limit of the maritime zone which international law placed under their respective jurisdictions.

On 6 June 1994, Cameroon filed in the Registry an Additional Application “for the purpose of extending the subject of the dispute” to a further dispute described as relating essentially “to the question of sovereignty over part of the territory of Cameroon in the area of Lake Chad”, while also requesting the Court to specify definitively the frontier between Cameroon and Nigeria from Lake Chad to the sea. That Application was treated as an amendment to the initial Application. After Nigeria had raised certain preliminary objections, Cameroon presented, on 1 May 1996, a written statement of its observations and submissions relating thereto, in accordance with an Order of the President dated 10 January 1996. Moreover, on 12 February 1996, Cameroon, referring to the “grave incidents which [had] taken place between the . . . forces [of the Parties] in the Bakassi Peninsula since . . . 3 February 1996”, asked the Court to indicate provisional measures. By an Order dated 15 March 1996, the Court indicated a number of provisional measures aimed principally at putting an end to the hostilities (…).

( By its Judgment of 11 June 1998, the decided on the preliminary objections of parties. In October 1998, Nicaragua initiated a request for the interpretation of this judgement, which was rejected by the Court.)

On 30 June 1999, the Republic of Equatorial Guinea filed an Application for permission to intervene in the case (which the Court allowed) (…_

In its Judgment of 10 October 2002, the Court determined the course of the boundary,between Cameroon and Nigeria. (See here for a summary) (…)

In its Judgment the Court requested Nigeria, expeditiously and without condition, to withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi Peninsula. It also requested Cameroon expeditiously and without condition to withdraw any administration or military or police forces which might be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which, pursuant to the Judgment, fell within the sovereignty of Nigeria. The latter had the same obligation in regard to territories in that area which fell within the sovereignty of Cameroon. The Court took note of Cameroon’s undertaking, given at the hearings, to “continue to afford protection to Nigerians living in the [Bakassi] peninsula and in the Lake Chad area”. Finally, the Court rejected Cameroon’s submissions regarding the State responsibility of Nigeria, as well as Nigeria’s counter-claims.”

10. LaGrand (Germany v. United States of America) Judgment, 27 June 2001

On 2 March 1999, Germany initiated proceedings against the United States of America in a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963.

Summary provided in the ICJ website:

” (…) Germany stated that, in 1982, the authorities of the State of Arizona had detained two German nationals, Karl and Walter LaGrand, who were tried and sentenced to death without having been informed of their rights, as is required under Article 36, paragraph 1 (b), of the Vienna Convention. Germany also alleged that the failure to provide the required notification precluded Germany from protecting its nationals’ interest provided for by Articles 5 and 36 of the Vienna Convention at both the trial and the appeal level in the United States courts. Germany asserted that although the two nationals, finally with the assistance of German consular officers, did claim violations of the Vienna Convention before the federal courts, the latter, applying the municipal law doctrine of “procedural default”, decided that, because the individuals in question had not asserted their rights in the previous legal proceedings at State level, they could not assert them in the federal proceedings. In its Application, Germany based the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article I of the Optional Protocol of the Vienna Convention on Consular Relations.

Germany accompanied its Application by an urgent request for the indication of provisional measures, requesting the Court to indicate that the United States should take “all measures at its disposal to ensure that [one of its nationals, whose date of execution had been fixed at 3 March 1999] [was] not executed pending final judgment in the case . . .”. On 3 March 1999, the Court delivered an Order for the indication of provisional measures calling upon the United States of America, among other things, to “take all measures at its disposal to ensure that [the German national] [was] not executed pending the final decision in [the] proceedings”. However, the two German nationals were executed by the United States (…)

Ruling on the merits of the case, the Court observed that the United States did not deny that, in relation to Germany, it had violated Article 36, paragraph 1 (b), of the Vienna Convention, which required the competent authorities of the United States to inform the LaGrands of their right to have the Consulate of Germany notified of their arrest. It added that, in the case concerned, that breach had led to the violation of paragraph 1 (a) and paragraph 1 (c) of that Article, which dealt respectively with mutual rights of communication and access of consular officers and their nationals, and the right of consular officers to visit their nationals in prison and to arrange for their legal representation. The Court further stated that the United States had not only breached its obligations to Germany as a State party to the Convention, but also that there had been a violation of the individual rights of the LaGrands under Article 36, paragraph 1, which rights could be relied on before the Court by their national State.

The Court then turned to Germany’s submission that the United States, by applying rules of its domestic law, in particular the doctrine of “procedural default”, had violated Article 36, paragraph 2, of the Convention. That provision required the United States to “enable full effect to be given to the purposes for which the rights accorded [under Article 36] [were] intended”. The Court stated that, in itself, the procedural default rule did not violate Article 36. The problem arose, according to the Court, when the rule in question did not allow the detained individual to challenge a conviction and sentence by invoking the failure of the competent national authorities to comply with their obligations under Article 36, paragraph 1. The Court concluded that, in the present case, the procedural default rule had the effect of preventing Germany from assisting the LaGrands in a timely fashion as provided for by the Convention. Under those circumstances, the Court held that in the present case the rule referred to violated Article 36, paragraph 2.

With regard to the alleged violation by the United States of the Court’s Order of 3 March 1999 indicating provisional measures, the Court pointed out that it was the first time it had been called upon to determine the legal effects of such orders made under Article 41 of its Statute — the interpretation of which had been the subject of extensive controversy in the literature. After interpreting Article 41, the Court found that such orders did have binding effect. In the present case, the Court concluded that its Order of 3 March 1999 “was not a mere exhortation” but “created a legal obligation for the United States”. The Court then went on to consider the measures taken by the United States to implement the Order concerned and concluded that it had not complied with it.

With respect to Germany’s request seeking an assurance that the United States would not repeat its unlawful acts, the Court took note of the fact that the latter had repeatedly stated in all phases of those proceedings that it was implementing a vast and detailed programme in order to ensure compliance, by its competent authorities, with Article 36 of the Convention and concluded that such a commitment must be regarded as meeting the request made by Germany. Nevertheless, the Court added that if the United States, notwithstanding that commitment, were to fail again in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned had been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States, by whatever means it chose, to allow the review and reconsideration of the conviction and sentence taking account of the violation of the rights set forth in the Convention.

For a commentary on Article 41 of the Statute, click here.  See here for more research material on the Vienna Convention and click here for the commentaries to the Vienna Convention

11. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment, 14 February 2002. 

Belgium issued and circulated internationally, an arrest warrant against the incumbent Foreign Minister of Congo, based on universal jurisdiction. Congo asked the ICJ to decide that Belgium violated international law because it did not respect the inviolability and immunities of the foreign minister from criminal process before Belgian courts.

The ICJ held that the incumbent Foreign Minister enjoys immunity (during his tenure) for acts performed, both, in an official capacity and in a private capacity. The immunity applies regardless of whether the Minister is on foreign territory in an official or private visit. The Court held that there was no exception in customary international law to the absolute immunity of an incumbent Foreign Minister, including for situations where he has committed war crimes and crimes against humanity. Immunity does not mean impunity. The person continues to be individually responsible for the crime he committed and identified four situations where such a person may be prosecuted.

The ICJ concluded that the issuance and circulation of the arrest warrant violated Belgium’s international obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s immunity and the inviolability enjoyed by him under international law.

For a summary of this case in this blog, see here.

For the ICJ summary, see here.

12. Kasikili/Sedudu Island (Botswana/Namibia) Judgment, 13 December 1999

On 29 May 1996, the Government of Botswana and the Government of Namibia by joint agreement submitted to the Court of the dispute concerning the boundary around Kasikili/Sedudu Island and the legal status of that island.

Excerpts of the summary provided in the ICJ website:

“In its Judgment of 13 December 1999, the Court began by stating that the island in question, which in Namibia is known as “Kasikili”, and in Botswana as “Sedudu”, is approximately 3.5 sq km in area, that it is located in the Chobe River, which divides around it to the north and south, and that it is subject to flooding of several months’ duration, beginning around March. It briefly outlined the historical context of the dispute, then examined the text of the 1890 Treaty, which, in respect of the region concerned, located the dividing line between the spheres of influence of Great Britain and Germany in the “main channel” of the River Chobe. In the Court’s opinion, the real dispute between the Parties concerned the location of that main channel, Botswana contending that it was the channel running north of Kasikili/Sedudu Island and Namibia the channel running south of the island. Since the Treaty did not define the notion of “main channel”, the Court itself proceeded to determine which was the main channel of the Chobe River around the Island. In order to do so, it took into consideration, inter alia, the depth and the width of the channel, the flow (i.e., the volume of water carried), the bed profile configuration and the navigability of the channel. After considering the figures submitted by the Parties, as well as surveys carried out on the ground at different periods, the Court concluded that “the northern channel of the River Chobe around Kasikili/Sedudu Island must be regarded as its main channel”. Having invoked the object and purpose of the 1890 Treaty and its travaux préparatoires, the Court examined at length the subsequent practice of the parties to the Treaty. The Court found that that practice did not result in any agreement between them regarding the interpretation of the Treaty or the application of its provisions. The Court further stated that it could not draw conclusions from the cartographic material “in view of the absence of any map officially reflecting the intentions of the parties to the 1890 Treaty” and in the light of “the uncertainty and inconsistency” of the maps submitted by the Parties to the dispute. It finally considered Namibia’s alternative argument that it and its predecessors had prescriptive titles to Kasikili/Sedudu Island by virtue of the exercise of sovereign jurisdiction over it since the beginning of the century, with the full knowledge and acceptance of the authorities of Botswana and its predecessors. The Court found that, while the Masubia of the Caprivi Strip (territory belonging to Namibia) did indeed use the island for many years, they did so intermittently, according to the seasons and for exclusively agricultural purposes, without it being established that they occupied the island à titre de souverain, i.e., that they were exercising functions of State authority there on behalf of the Caprivi authorities. The Court therefore rejected that argument. After concluding that the boundary between Botswana and Namibia around Kasikili/Sedudu Island followed the line of deepest soundings in the northern channel of the Chobe and that the island formed part of the territory of Botswana, the Court recalled that, under the terms of an agreement concluded in May 1992 (the “Kasane Communiqué”), the Parties had undertaken to one another that there should be unimpeded navigation for craft of their nationals and flags in the channels around the Island.”

13. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) Advisory Opinion, 29 April 1999

Excerpts of the summary provided in the ICJ website:

(The) Economic and Social Council requested the Court for an advisory opinion on the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations to a Special Rapporteur of the Commission on Human Rights, and on the legal obligations of Malaysia in that case. The Special Rapporteur, Mr. Cumaraswamy, was facing several lawsuits filed in Malaysian courts by plaintiffs who asserted that he had used defamatory language in an interview published in a specialist journal and who were seeking damages for a total amount of US$112 million. However, according to the United Nations Secretary-General, Mr. Cumaraswamy had been speaking in his official capacity as Special Rapporteur and was thus immune from legal process by virtue of the above-mentioned Convention (…)

In its Advisory Opinion of 29 April 1999, having concluded that it had jurisdiction to render such an opinion, the Court noted that a Special Rapporteur entrusted with a mission for the United Nations must be regarded as an expert on mission within the meaning of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations. It observed that Malaysia had acknowledged that Mr. Cumaraswamy was an expert on mission and that such experts enjoyed the privileges and immunities provided for under the Convention in their relations with States parties, including those of which they were nationals. The Court then considered whether the immunity applied to Mr. Cumaraswamy in the specific circumstances of the case. It emphasized that it was the Secretary-General, as the chief administrative officer of the Organization, who had the primary responsibility and authority to assess whether its agents had acted within the scope of their functions and, where he so concluded, to protect those agents by asserting their immunity. The Court observed that, in the case concerned, the Secretary-General had been reinforced in his view that Mr. Cumaraswamy had spoken in his official capacity by the fact that the contentious Article several times explicitly referred to his capacity as Special Rapporteur, and that in 1997 the Commission on Human Rights had extended his mandate, thereby acknowledging that he had not acted outside his functions by giving the interview. Considering the legal obligations of Malaysia, the Court indicated that, when national courts are seised of a case in which the immunity of a United Nations agent is in issue, they must immediately be notified of any finding by the Secretary-General concerning that immunity and that they must give it the greatest weight. Questions of immunity are preliminary issues which must be expeditiously decided by national courts in limine litis. As the conduct of an organ of a State, including its courts, must be regarded as an act of that State, the Court concluded that the Government of Malaysia had not acted in accordance with its obligations under international law in the case concerned.”

14. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations Advisory Opinion, 15 December 1989

Excerpts of the summary provided in the ICJ website:

On 24 May 1989, the Economic and Social Council of the United Nations (ECOSOC) adopted a resolution whereby it requested the Court to give, on a priority basis, an advisory opinion on the question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations in the case of Mr. Dumitru Mazilu, Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights.

Mr. Mazilu, a Romanian national, had been entrusted, by a resolution of the Sub-Commission, with the task of drawing up a report on “Human Rights and Youth” in connection with which the Secretary-General was asked to provide him with all the assistance he might need.

Mr. Mazilu was absent from the 1987 session of the Sub-Commission, during which he was to have filed his report, and Romania let it be known that he had been taken into hospital. Mr. Mazilu’s mandate finally expired on 31 December 1987, but without his being relieved of the task of Rapporteur that had been assigned to him.

Mr. Mazilu was able to get various messages through to the United Nations, in which he complained that the Romanian authorities were refusing him a travel permit.

Moreover, those authorities, further to contacts initiated by the Under-Secretary-General for Human Rights at the request of the Sub-Commission, had let it be known that any intervention of the United Nations Secretariat would be considered as interference in Romania’s internal affairs.

Those authorities subsequently informed the United Nations of their position with regard to the applicability to Mr. Mazilu of the Convention on the Privileges and Immunities of the United Nations, asserting, inter alia, that the Convention did not equate Rapporteurs, whose activities were only occasional, with experts on missions for the United Nations ; that they could not, even if granted some of that status, enjoy anything more than functional immunities and privileges ; that those privileges and immunities began to apply only at the moment when the expert left on a journey connected with the performance of his mission ; and that in the country of which he was a national an expert enjoyed privileges and immunities only in respect of actual activities relating to his mission.

The Court rendered its Advisory Opinion on 15 December 1989, and began by rejecting Romania’s contention that the Court lacked jurisdiction to entertain the Request. Moreover, the Court did not find any compelling reasons that might have led it to consider it inappropriate to render an opinion.

It then engaged in a detailed analysis of Article VI, Section 22, of the Convention, which relates to “Experts on missions for the United Nations”. It reached the conclusion, inter alia, that Section 22 of the Convention was applicable to persons (other than United Nations officials) to whom a mission had been entrusted by the Organization and who were therefore entitled to enjoy the privileges and immunities provided for in that Section with a view to the independent exercise of their functions ; that during the whole period of such missions, experts enjoyed these functional privileges and immunities whether or not they travelled ; and that those privileges and immunities might be invoked against the State of nationality or of residence unless a reservation to Section 22 of the Convention had been validly made by that State.

Turning to the specific case of Mr. Mazilu, the Court expressed the view that he continued to have the status of Special Rapporteur, that as a consequence he should be regarded as an expert on mission within the meaning of Section 22 of the Convention and that that Section was accordingly applicable in his case.

15. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) Judgment, 24 May 1980

Excerpts of the summary provided in the ICJ website:

The case was brought before the Court by Application by the United States following the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the capture and holding as hostages of its diplomatic and consular staff.

On a request by the United States for the indication of provisional measures, the Court held that there was no more fundamental prerequisite for relations between States than the inviolability of diplomatic envoys and embassies, and it indicated provisional measures for ensuring the immediate restoration to the United States of the Embassy premises and the release of the hostages.

In its decision on the merits of the case, at a time when the situation complained of still persisted, the Court, in its Judgment of 24 May 1980, found that Iran had violated and was still violating obligations owed by it to the United States under conventions in force between the two countries and rules of general international law, that the violation of these obligations engaged its responsibility, and that the Iranian Government was bound to secure the immediate release of the hostages, to restore the Embassy premises, and to make reparation for the injury caused to the United States Government.

The Court reaffirmed the cardinal importance of the principles of international law governing diplomatic and consular relations. It pointed out that while, during the events of 4 November 1979, the conduct of militants could not be directly attributed to the Iranian State — for lack of sufficient information — that State had however done nothing to prevent the attack, stop it before it reached its completion or oblige the militants to withdraw from the premises and release the hostages. The Court noted that, after 4 November 1979, certain organs of the Iranian State had endorsed the acts complained of and decided to perpetuate them, so that those acts were transformed into acts of the Iranian State.

The Court gave judgment, notwithstanding the absence of the Iranian Government and after rejecting the reasons put forward by Iran in two communications addressed to the Court in support of its assertion that the Court could not and should not entertain the case.

The Court was not called upon to deliver a further judgment on the reparation for the injury caused to the United States Government since, by Order of 12 May 1981, the case was removed from the List following discontinuance.

Western Sahara Advisory Opinion of 16 October 1975

On 13 December 1974, the General Assembly requested an advisory opinion on the following questions: “I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius) ?” If the answer to the first question is in the negative, “II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity ?”

See the summary provided in the ICJ website:

In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the negative. (It held that “(t)he information furnished the court shows (a)that at the time of colonization western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terra nullius.“)

In reply to Question II, it expressed the opinion that the materials and information presented to it showed the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. (The Court founds that materials show “that the Sultan displayed, and was recognized by other States to possess, some authority or influence with respect to those tribes.”)

They equally showed the existence of rights, including some rights relating to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara.

On the other hand, the Court’s conclusion was that the materials and information presented to it did not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.

Thus the Court did not find any legal ties of such a nature as might affect the application of the General Assembly’s 1960 resolution 1514 (XV) — containing the Declaration on the Granting of Independence to Colonial Countries and Peoples — in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory.