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The 2005 Judicial Activity of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

Stephen Mathias
Stephen Mathias*
Affiliation:
Of the Washington, D.C., bar.
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Extract

In 2005, the International Court of Justice issued three judgments.l In February, the Court upheld an objection to its jurisdiction in Certain Property (Liechtenstein v. Germany). In July, a chamber of the Court issued its judgment on the merits in Frontier Dispute (Benin/Niger). In December, the full Court issued its judgment on the merits in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).

Type
Current Developments
Information
American Journal of International Law , Volume 100 , Issue 3 , July 2006 , pp. 629 - 649
Copyright
Copyright © American Society of International Law 2006

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References

1 This review continues the series of annual reports on the Court’s work. The five previous reports were written by John R. Crook and appeared in the journal from 2001 to 2005.

2 Certain Property (Liech. v. F.R.G.) (Int’l Ct. Justice Feb. 10, 2005). All of the Court’s materials cited in this article are available on its Web site, <http://www.icj–cij.org>.

3 Certain Property, para. 13.

4 Following the Second World War, France, the United Kingdom, the United States, and the Federal Republic of Germany entered into a Convention on the Settlement of Matters Arising out of the War and the Occupation, May 26, 1952, 6 UST 4411, 332 UNTS 219. Article 3 of Chapter 6 provides:

  1. 1

    1 The Federal Republic shall in the future raise no objections against the measures which have been, or will be, carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution, or as a result of the state of war, or on the basis of agreements concluded, or to be concluded, by the Three Powers with other Allied countries, neutral countries or former allies of Germany.

    . . . .

  2. 3

    3 No claim or action shall be admissible against persons who shall have acquired or transferred title to property on the basis of the measures referred to in paragraph 1 and 2 of this Article, or against international organizations, foreign governments or persons who have acted upon instructions of such organisations or governments.

Article 5 of Chapter 6 provides that the “Federal Republic shall ensure that the former owners of property seized pursuant to the measures referred to in Articles 2 and 3 of this Chapter shall be compensated.”

On September 27 and 28, 1990, France, the United Kingdom, the United States, and the Federal Republic of Germany, the parties to the Settlement Convention, executed an exchange of notes pursuant to which that Convention would terminate simultaneously with the entry into force of the Treaty on Final Settlement. The exchange of notes provided further, however, that paragraphs 1 and 3 of Article 3, Chapter Six, of the Settlement Convention would remain in force. Certain Property, paras. 14–15.

5 The decision of the German Federal Constitutional Court was the subject of a case report in this Journal. See Bardo, Fassbender, Case Report: Prince of Liechtenstein v. Federal Supreme Court, 93 AJIL 215 (1999)Google Scholar.

6 Prince, Hans–Adam II of Liechtenstein v. Germany, App. No. 42527/98 (Eur. Ct. H.R. July 12, 2001)Google Scholar, at <http://www.echr.coe.int>.

7 Certain Property, para. 18. Article 1 of the European Convention for the Peaceful Settlement of Disputes, Apr. 29, 1957, 320 UNTS 243, provides, in part:

The High Contracting Parties shall submit to the judgement of the International Court of Justice all international legal disputes which may arise between them including, in particular, those concerning:

  • (a) the interpretation of a treaty;

  • (b) any question of international law;

  • (c) the existence of any fact which, if established, would constitute a breach of an international obligation;

  • (d) the nature or extent of the reparation to be made for the breach of an international obligation.

8 Certain Property, para. 18 (emphasis added).

9 Id., para. 29.

10 Id., para. 31.

11 Id., para. 32.

12 Phosphates in Morocco (Italy v. Fr.) 1936 PCIJ (ser. A/B) No. 74.

13 Electricity Company of Sofia and Bulgaria (Belg. v. Bulg.) 1939 PCIJ (ser. A/B) No. 77.

14 Right of Passage over Indian Territory (Port. v. India), 1960 ICJ REP. 6 (Apr. 12).

15 Id. at 35, as quoted in Certain Property, para. 44

16 Certain Property, para. 49.

17 Id., para. 50 (emphasis added).

18 Id., para. 51.

19 Id., Diss. Op. Owada, J., para. 39.

20 Id., para. 40.

21 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 139 (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004)CrossRefGoogle Scholar.

22 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3 (Feb. 14). It should be noted that some of the more interesting issues in the case were discussed thoughtfully and in significant depth by Judges Higgins, Kooijmans, and Buergenthal in their separate opinion.

23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), Provisional Measures, Sep. Op. Lauterpacht, J. ad hoc, 1993 ICJ Rep. 3 (Sept. 13).

24 Sovereignty over Pulau Ligitan and Lulau Sipidan (Indon./Malay.), Diss. Op. Franck, J. ad hoc (Int’l Ct. Justice, Dec. 17, 2002)Google Scholar.

25 Certain Property, Diss. Op. Berman, J., para. 17.

26 “For my part, I am in the company of those who experience difficulty in following the Court’s reasoning in the case concerning Certain Phosphate Lands in Nauru.” Id., para. 26.

27 “One could have wished, indeed one would have been entitled to expect, that Liechtenstein had been at greater pains to show the Court in detail what issues the German courts had actually been confronted with, and how exactly those issues had been dealt with.” Id., para. 10. “Both of these propositions [that there had been a prior understanding between Germany and Liechtenstein and that there had been a change of position by Germany] I regard as red herrings, and the fact that they were introduced by the Applicant itself into its argument does not make them any the less so.” Id., para. 18.

28 “Even allowing for an understandable degree of forensic reinsurance, the interposition of a barricade of three jurisdictional plus three ‘admissibility’ objections against so simple a claim creates the impression of indignation, not to say outrage, that the claim should have been brought in the first place.” Id., para. 4.

29 Judge Berman wrote:

One cannot read the papers in this case without the feeling that, faced with the undoubtedly difficult and highly sensitive issue of the Beneš Decrees, the German courts have taken refuge behind the Settlement Convention (and previously Allied High Commission Law No. 63), and that the then German Government has taken refuge behind the German courts. That position, understandable as it may be in relation to the confiscation of German property, is not a proper way of dealing with the question of neutral property confiscated as if it were German.

Id., para. 29.

30 Judge Berman observed:

It is all too easy to portray Chapter Six of the Settlement Convention as if it were simply a heavy burden imposed upon an unwilling Germany. But the truth is that Chapter Six also served Xaprotect the newly founded German State by absolving it of co–responsibility for the confiscations, and at the same time absolving its courts from the invidious task of having to sit in judgment on a flood of complaints from its citizens about the treatment visited on their property abroad. Yet the counterpart to this protection for Germany—the necessary element for its completion—must surely have been, quite intentionally, the obligation to compensate laid down in Article 5 of the same Chapter (with no apparent limitation, it may be remarked, to German citizens at all). To lay claim to the one while disclaiming the other is surely a position that requires re–examination. One can only hope that even now some such re–examination may be possible.

Id.

31 Frontier Dispute (Benin/Niger) (Int’l Ct. Justice July 12, 2005).

32 Id., para. 2.

33 Id., para. 23 (citations omitted).

34 Recalling the judgment in Frontier Dispute (Burk. Faso/Mali), 1986 ICJ Rep. 554 (Dec. 22), the Court stated that maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. That is the case, for example, when maps are annexed to an official text of which they form an intrinsic part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.

In other words,

“except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of rebuttable or juris tantum presumption such as to effect a reversal of the onus of proof.”

Id., para. 44.

35 The Court noted that it had previously ruled in a number of cases on the legal relationship between effectivités and title, stating:

The passage most pertinent to the present case can be found in the Judgment in the Frontier Dispute (Burkina FasolRepublic of Mali) case, in which the Chamber of the Court, having noted that “a distinction must be drawn among several eventualities” when evaluating the legal relationship between effectivités and title, stated, inter alia, that “[i]n the event that the effectivité does not co–exist with any legal title, it must invariably be taken into consideration”.

Id., para. 77.

36 In response to a contention by Benin that, even if the local authorities of Niger did administer Lété and other islands during the period between 1914 and 1954, they could not have done so in the belief that they were acting “as of right,” the chamber observed:

[The] concept of the intention and will to act as sovereign, as mentioned in the Legal Status of Eastern Greenland (Denmark v. Norway) case . . . is a concept of international law and cannot be transplanted purely and simply to colonial law. The Chamber’s sole task in applying the principle of uti posseditis juris is to ascertain whether it was the colony of Dahomey or that of Niger which effectively exercised authority over the areas which the Parties now claim as sovereign States.

Id., para. 102.

37 The chamber dealt with the 1907 decree as follows:

[T]he Chamber would emphasize that the uti possidetis juris principle requires not only that reliance be placed on existing legal titles, but also that account be taken of the manner in which those titles were interpreted and applied by the competent public authorities of the colonial Power, in particular of their law–making power. The Chamber is bound to note that the administrative instruments promulgated after 1927 were never the subject of any challenge before the competent courts, and that there is no evidence that the colonial administration was ever criticized at the time for having improperly departed from the line resulting from the 1907 decree. It is not for the Chamber to substitute itself for a domestic court (in this case, the French administrative courts) by carrying out its own review of the legality of the instruments in question in light of the 1907 decree, nor to speculate on what the French courts might have decided had they been seised of the matter. The fact is that they were not so seised and that there is nothing to suggest that, in the decisions taken by them after 1927, the administrative authorities either manifestly exceeded their powers or acted in manifest breach of the applicable rules.

Id., para. 140.

38 Id., Order, Decl. Oda, J. (Nov. 27, 2002).

39 Id.

40 Land, Island and Maritime Frontier Dispute (El Sal./Hond: Nicar. Intervening), Order, Decl.Oda, J. (May 8, 1987).

41 See, for example, the discussion in Frontier Dispute (Burk. Faso/Mali), paras. 19–27.

42 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) (Int’l Ct. Justice, Dec. 19, 2005).

43 More specifically, as the Court found:

Under the terms of Annex “B”, the Calendar for the Implementation of the Ceasefire Agreement was dependent upon a series of designated “Major Events” which were to follow upon the official signature of the Agreement (“D–Day”). This “Orderly Withdrawal of all Foreign Forces” was to occur on “D–Day plus 180 days”. It was provided that, pending that withdrawal,’ [a]ll forces shall remain in the declared and recorded locations” in which they were present at the date of signature of the Agreement (Ann. A, Art. 11.4).

Id., para. 95.

44 The Court concluded:

The arrangements made at Lusaka, to progress towards withdrawal of foreign forces and an eventual peace, with security for all concerned, were directed at. . . factors on the ground and at the realities of the unstable political and security situation. The provisions of the Lusaka Agreement thus represented an agreed modus operandi for the parties. They stipulated how the parties should move forward. They did not purport to qualify the Ugandan military presence in legal terms. In accepting this modus operandi the DRC did not “consent” to the presence of Ugandan troops. It simply concurred that there should be a process to end that reality in an orderly fashion. The DRC was willing to proceed from the situation on the ground as it existed and in the manner agreed as most likely to secure the result of a withdrawal of foreign troops in a stable environment. But it did not thereby recognize the situation on the ground as legal, either before the Lusaka Agreement or in the period that would pass until the fulfillment of its terms.

Id., para. 99. The Court reached a similar conclusion with respect to revisions to the withdrawal timetable memorialized in the Kampala Disengagement Plan of April 8, 2000, the Harara Disengagement Plan of December 6, 2000, and the bilateral Luanda Agreement, at <http://www.state.gov/t/ac/csbm/rd/22627.htm>, except with respect to the provision in the Luanda Agreement that “Ugandan troops shall remain on the slopes of Mt. Ruwenzori.”

45 In his separate opinion Judge Parra–Aranguren was critical of the Court’s conclusion on consent. He wrote that “the majority of the Court understands that the Lusaka Ceasefire Agreement did not change the legal status of the presence of Uganda, i.e., in violation of international law, but at the same time it considers that Uganda was under an obligation to respect the timetable agreed upon . . ..” In his view, this interpretation “creates an impossible legal situation for Uganda.” Armed Activities on the Territory of the Congo, Sep. Op. Parra–Aranguren, J., paras. 7, 8.

46 Armed Activities on the Territory of the Congo, paras. 95, 99.

47 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ REP. 14 (June 27).

48 Oil Platforms (Iran v. U.S.), 2003 ICJ Rep. 161 (Nov. 6).

49 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004)CrossRefGoogle Scholar.

50 See, e.g., William, H.Taft IV, Self–Defense and the Oil Platforms Decision, 29 Yale J. Int’l L. 295 (2004)Google Scholar; Sean, D. Murphy, Self–Defense and the Israeli Wall Advisory Opinion: An Ipse Dixit from the ICJ? 99 AJIL 62 (2005)Google Scholar.

51 Armed Activities on the Territory of the Congo, para. 146.

52 Id., para. 147 (emphasis added).

53 Id.

54 Id., Sep. Op. Kooijmans, J., para. 25.

55 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, para. 139 (emphasis added).

56 Armed Activities on the Territory of the Congo, Sep. Op. Kooijmans, J., para. 30.

57 Id., Sep. Op. Simma, J., para. 11.

58 Id., Diss. Op. Kateka, J., para. 13.

59 The Court quoted this document in its entirety:

WHEREAS for a long time the DRC has been used by the enemies of Uganda as a base and launching pad for attacks against Uganda;

AND

WHEREAS the successive governments of the DRC have not been in effective control of all the territory of the Congo;

AND

WHEREAS in May 1997, on the basis of a mutual understanding the Government of Uganda deployed UPDF to jointly operate with the Congolese Army against Uganda enemy forces in the DRC;

AND

WHEREAS when an anti–Kabila rebellion erupted in the DRC the forces of the UPDF were still operating along side the Congolese Army in the DRC, against Ugandan enemy forces who had fled back to the DRC;

NOW THEREFORE the High Command sitting in Kampala this 11th day of September, 1998, resolves to maintain forces of the UPDF in order to secure Uganda’s legitimate security interests which are the following:

  1. 1.

    1. To deny the Sudan opportunity to use the territory of the DRC to destabilize Uganda.

  2. 2.

    2. To enable UPDF to neutralize Uganda dissident groups which have been receiving assistance from the Government of the DRC and the Sudan.

  3. 3.

    3. To ensure that the political and administrative vacuum, and instability caused by the fighting between the rebels and the Congolese Army and its allies do not adversely affect the security of Uganda.

  4. 4.

    4. To prevent the genocidal elements. . . which have been launching attacks on the people of Uganda from the DRC, from continuing to do so.

  5. 5.

    5. To be in a position to safeguard the territorial integrity of Uganda against irresponsible threats of invasion from certain forces.

Armed Activities on the Territory of the Congo, para. 109.

60 Id., paras. 119, 143.

61 Id., para. 143.

62 Judge Simma wrote: “If there ever was a military activity before the Court that deserves to be qualified as an act of aggression, it is the Ugandan invasion of the DRC. Compared to its scale and impact, the military adventures the Court had to deal with in earlier cases, as in Corfu Channel, Nicaragua, or Oil Platforms, border on the insignificant.” Id., Sep. Op. Simma J., para. 2.

63 Judge, Elaraby wrote that the activities of Uganda “fall clearly within the scope of Article 1 of the definition: ‘[a]ggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations . . . .’” Id., Sep. Op. Elaraby, J. Google Scholar, para. 14. He concluded his separate opinion (devoted exclusively to this issue) by writing:

I am unable... to appreciate any compelling reason for the Court to refrain from finding that Uganda’s actions did indeed amount to aggression. The International Court of Justice has not been conceived as a penal court, yet its dicta have wide–ranging effects in the international community’s quest to deter potential aggressors and to overcome the culture of impunity. Given the centrality of the claim of aggression to the Democratic Republic of the Congo’s Application as well as the seriousness of the violation of the use of force in the present case and the broader importance of repressing aggression in international relations, I have appended this separate opinion to respond fully to the Democratic Republic of the Congo’s submission on this point.

Id., para. 20.

64 Armed Activities on the Territory of the Congo, para. 61.

65 Increased attention to evidentiary issues is welcome and much needed; questions have been raised as to the Court’s fact–finding in the past. See, e.g., John, R. Crook, The 2003 Judicial Activity of the International Court of justice, 98 AJIL 309, 310–311 (2004)Google Scholar.

66 The Court rejected Uganda’s request to call two witnesses. Armed Activities on the Territory of the Congo, para. 15.

67 Id., para. 160.

68 Id.

69 Id., para. 293.

70 Id., para. 26.

71 Id., para. 221.

72 Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility (Int’l Ct. Justice Feb. 3, 2006).

73 Armed Activities on the Territory of the Congo, Sep. Op. Kooijmans, J., para. 11.

74 Id., para. 13.

75 Id., para. 14.

76 Report of the International Court of Justice: 1 August 2004–31 July 2005 Google Scholar, paras. 228–35. The Court also deleted the third paragraph of Article 52, which concerned the procedure to be followed when the Registrar arranges for the printing of pleadings.

77 ICJ Press Release 2005/19 (Sept. 29, 2005).

78 ICJ Press Release 2005/5 (Feb. 15, 2005).

79 ICJ Press Release 2005/23 (Nov. 8, 2005).

80 In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary–General, para. 139, UN Doc. A/59/2005, at <http://www.un.org/largerfreedom/contents.htm>.

81 2005 World Summit Outcome, G.A. Res. 60/1, para. 73 (Sept. 16, 2005).

82 Id., para. 134(f).

83 Shi, Jiuyong, ICJ President, Address to the UN General Assembly (Oct. 27, 2005)Google Scholar, at <http://www.icjcij.org> [hereinafter Shi Address].

84 GA Res. 37/10 (Nov. 14, 1982).

85 Shi Address, supra note 83.

86 Id.

87 Avena (Mex. v. U.S.) (Int’l Ct. Justice Mar. 31, 2004), 43 ILM 581 (2004).

88 ICJ Press Releases 2005/12 (May 9, 2005), 2005/13 (June 13, 2005), & 2005/15 (July 8, 2005).

89 See supra note 72.

90 ICJ Press Release 2005/27 (Dec. 21, 2005).

91 ICJ Press Release 2005/20 (Sept. 29, 2005).

92 For example, the Treaty of Limits between the two countries dated April 15, 1858; an arbitral award of the president of the United States dated March 22, 1888; a judgment of the Central American Court of Justice of September 13, 1916; and a supplementary agreement between the countries dated January 9, 1956. Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), Application, para. 1 (Int’l Ct. Justice Sept. 29, 2005).

93 Id., para. 2.

94 Id., para. 3.

95 Id., para. 6.

96 Id., para. 8.

97 Id., para. 9.

98 Id., para. 12.

99 See ICJ Press Release 2005/24 (Dec. 2, 2005); Dispute Regarding Navigational and Related Rights, Order (Intl. Ct. Justice Nov. 29, 2005).