          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

    AFFAIRE DES ACTIVITEu S ARMEu ES
     SUR LE TERRITOIRE DU CONGO
       (NOUVELLE REQUE| TE: 2002)
(RE
  u PUBLIQUE DE
              u MOCRATIQUE DU CONGO c. RWANDA)

           COMPEu TENCE DE LA COUR
        ET RECEVABILITE
                      u DE LA REQUE| TE

            ARRE
               | T DU 3 FE
                         u VRIER 2006

                 2006
          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

CASE CONCERNING ARMED ACTIVITIES
 ON THE TERRITORY OF THE CONGO
      (NEW APPLICATION: 2002)
(DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA)

          JURISDICTION OF THE COURT
     AND ADMISSIBILITY OF THE APPLICATION

         JUDGMENT OF 3 FEBRUARY 2006

                       Mode officiel de citation :
  Activités armées sur le territoire du Congo (nouvelle requête : 2002)
   (République démocratique du Congo c. Rwanda), compétence et
              recevabilité, arrêt, C.I.J. Recueil 2006, p. 6

                           Official citation :
Armed Activities on the Territory of the Congo (New Application : 2002)
   (Democratic Republic of the Congo v. Rwanda), Jurisdiction and
         Admissibility, Judgment, I.C.J. Reports 2006, p. 6

                                              No de vente :
ISSN 0074-4441
ISBN 92-1-071020-7
                                              Sales number    911

                                             3 FE
                                                u VRIER 2006

                                                   ARRE
                                                      |T

      ACTIVITE
             u S ARME
                    u ES SUR LE TERRITOIRE
      DU CONGO (NOUVELLE REQUE    | TE : 2002)
(RE
  u PUBLIQUE DE
              u MOCRATIQUE DU CONGO c. RWANDA)

                COMPÉTENCE DE LA COUR
             ET RECEVABILITÉ DE LA REQUÊTE

     ARMED ACTIVITIES ON THE TERRITORY
     OF THE CONGO (NEW APPLICATION : 2002)
(DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA)

               JURISDICTION OF THE COURT
          AND ADMISSIBILITY OF THE APPLICATION

                                           3 FEBRUARY 2006

                                                 JUDGMENT

PRINTED IN THE NETHERLANDS

                             ISSN 0074-4441
                             ISBN 92-1-071020-7

                                                                              6

               INTERNATIONAL COURT OF JUSTICE

                                 YEAR 2006                                            2006
                                                                                3 February
                                                                                General List
                               3 February 2006                                       No. 126

   CASE CONCERNING ARMED ACTIVITIES
    ON THE TERRITORY OF THE CONGO
         (NEW APPLICATION: 2002)
   (DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA)
                JURISDICTION OF THE COURT
           AND ADMISSIBILITY OF THE APPLICATION

  Present proceedings confined to the questions of the jurisdiction of the Court
and the admissibility of the DRC’s Application.

                                     *       *
  Jurisdiction of the Court — Applicant invoking 11 bases of jurisdiction.

                                         *
  (1) Article 30 of the Convention against Torture of 10 December 1984.
  Rwanda not party to that Convention — DRC cannot invoke that instrument
as a basis of jurisdiction.
  (2) Article 9 of the Convention on the Privileges and Immunities of the
Specialized Agencies of 21 November 1947.
  Convention not invoked by the DRC in the final version of its argument —
Convention not taken into consideration by the Court in its Judgment.

                                         *
  (3) Forum prorogatum.
  DRC’s contention that Rwanda’s agreement to plead amounts to acceptance
of the Court’s jurisdiction — Express and repeated objection by Rwanda to the
Court’s jurisdiction at every stage of the proceedings — Whether there has been
an unequivocal indication of voluntary and indisputable acceptance of the

                                                                              4

                        ARMED ACTIVITIES (JUDGMENT)                              7

Court’s jurisdiction — Rwanda’s attitude cannot be interpreted as consent to the
Court’s jurisdiction over the merits of the dispute.

  (4) Order of 10 July 2002 on the indication of provisional measures.
  Absence of manifest lack of Court’s jurisdiction interpreted by the DRC as
acknowledgment by the Court of its jurisdiction — Non-removal of DRC’s
Application from the Court’s List — Object of present phase of proceedings is
precisely the Court’s further examination of the issue of its jurisdiction —
Absence of manifest lack of jurisdiction not amounting to acknowledgment by
the Court of its jurisdiction.

                                         *
   (5) Article IX of the Genocide Convention of 9 December 1948 — Reserva-
tion by Rwanda.
   Whether Rwanda withdrew its reservation through the adoption of décret-
loi No. 014/01 of 15 February 1995 — Question of the validity and effect of the
décret-loi in Rwanda’s domestic legal order different from that of its effect in
the international legal order — Withdrawal by a contracting State of a reserva-
tion to a multilateral treaty having effect in relation to other contracting States
only when they have received notice thereof — No agreement whereby with-
drawal of the reservation could have become operative without notice — No
notice by Rwanda of such withdrawal received at international level — Adoption
and publication of the décret-loi not entailing, as a matter of international law,
Rwanda’s withdrawal of its reservation.
   DRC’s contention that withdrawal of the reservation was corroborated by a
statement of 17 March 2005 by Rwanda’s Minister of Justice before the United
Nations Commission on Human Rights — Claim that this statement constituted
a unilateral undertaking having legal effects in regard to withdrawal of the
reservation — Capacity of a Minister of Justice to bind the State internationally
by statements in respect of matters falling within the Minister’s purview cannot
be ruled out merely because of the nature of the functions exercised — Exami-
nation of the legal effect of the Minister’s statement in light of its content and
of the circumstances in which it was made — Content of the statement not suf-
ficiently precise — Statement cannot be considered as confirmation by Rwanda
of a previous decision to withdraw its reservation or as a unilateral commitment
having legal effects in regard to such withdrawal — Statement having nature of
a declaration of intent, very general in scope — Whether statement could have
effect on the Court’s jurisdiction, given that it was made almost three years
after the institution of proceedings — Procedural defect which the Applicant
could easily remedy : should not be penalized by the Court.

   DRC’s contention that Rwanda’s reservation was invalid because it sought to
prevent the Court from safeguarding peremptory norms — Erga omnes nature
of the rights and obligations enshrined in the Genocide Convention — Charac-
terization of the prohibition of genocide as a peremptory norm of general inter-
national law (jus cogens) — The fact that a norm having such character may be
at issue in a dispute cannot in itself provide a basis for the Court’s jurisdiction
to entertain that dispute — Court’s jurisdiction always based on consent of the
parties.
   DRC’s contention that Rwanda’s reservation was invalid because incompat-
ible with the object and purpose of the Genocide Convention — Effect of the

                                                                                5

                        ARMED ACTIVITIES (JUDGMENT)                             8

fact that Article 120 of the Statute of the International Criminal Court permits
no reservations to that Statute — Reservations not prohibited by the Genocide
Convention — This legal situation not altered by Article 120 of the Statute of
the International Criminal Court — Rwanda’s reservation bearing not on sub-
stantive obligations under the Genocide Convention but on the Court’s juris-
diction — Reservation not incompatible with the object and purpose of the
Genocide Convention.
   DRC’s contention that the reservation conflicts with a peremptory norm of
general international law — No such norm requiring a State to consent to the
Court’s jurisdiction in order to settle a dispute relating to the Genocide Conven-
tion — Article IX of the Genocide Convention cannot constitute a basis for the
Court’s jurisdiction.

                                        *
   (6) Article 22 of the Convention on Racial Discrimination of 21 December
1965 — Reservation by Rwanda.
   Whether Rwanda’s reservation withdrawn through the adoption of décret-loi
No. 014/01 of 15 February 1995 — DRC’s contention that withdrawal of the
reservation was corroborated by a statement of 17 March 2005 by Rwanda’s
Minister of Justice before the United Nations Commission on Human Rights —
Claim that this statement constituted a unilateral undertaking having legal
effects in regard to withdrawal of the reservation — Applicability mutatis
mutandis to this issue of the Court’s reasoning and findings regarding the
DRC’s claim that Rwanda had withdrawn its reservation to the Genocide Con-
vention — Procedures for withdrawal of a reservation to the Convention on
Racial Discrimination expressly provided for in Article 20, paragraph 3,
thereof — No notification to United Nations Secretary-General by Rwanda of
the withdrawal of its reservation — Rwanda having maintained its reservation.

   DRC’s contention that Rwanda’s reservation was invalid because incompat-
ible with the object and purpose of the Convention — Under Article 20, para-
graph 2, of the Convention, reservations are to be considered incompatible with
the Convention’s object and purpose if at least two-thirds of States parties
object — Condition of Article 20, paragraph 2, not satisfied in respect of
Rwanda’s reservation to Article 22 — Applicability mutatis mutandis of the
Court’s reasoning and conclusions in respect of the DRC’s contention that
Rwanda’s reservation to the Genocide Convention was invalid — Reservation to
the Convention on Racial Discrimination not incompatible with the object
and purpose of that Convention.
   DRC’s contention that the reservation conflicts with a peremptory norm of
general international law — Court’s reference to its reasons for dismissing the
DRC’s argument in respect of Rwanda’s reservation to Article IX of the Geno-
cide Convention — Article 22 of the Convention on Racial Discrimination can-
not constitute a basis for the Court’s jurisdiction.

                                        *
 (7) Article 29, paragraph 1, of the Convention on Discrimination against
Women of 18 December 1979.
 DRC’s contention that an objection based on non-compliance with the pre-

                                                                                6

                        ARMED ACTIVITIES (JUDGMENT)                               9

conditions provided for in Article 29 is an objection to admissibility of the Appli-
cation — Examination of the conditions determining the extent of acceptance of
the Court’s jurisdiction relates to the issue of its jurisdiction and not to the
admissibility of the Application — Conclusion applicable mutatis mutandis
to all the other compromissory clauses invoked by DRC — Conditions of
Article 29 cumulative — Whether preconditions for seisin of the Court satisfied —
DRC not having shown that its attempts to negotiate with Rwanda related to
settlement of a dispute concerning the interpretation or application of the Con-
vention — DRC having further not shown that it made a proposal to Rwanda
for the organization of arbitration proceedings to which the latter failed to
respond — Article 29, paragraph 1, of the Convention on Discrimination
against Women cannot serve to found the Court’s jurisdiction.

                                         *

   (8) Article 75 of the WHO Constitution of 22 July 1946.
   Whether preconditions for seisin of Court satisfied — DRC not having
demonstrated the existence of a question or dispute concerning the interpreta-
tion or application of the WHO Constitution — DRC having further not proved
that it sought to settle the question or dispute by negotiation or that the World
Health Assembly could not have settled it — Article 75 of the WHO Constitu-
tion cannot serve to found the Court’s jurisdiction.

                                         *

   (9) Article XIV, paragraph 2, of the Unesco Constitution of 16 November
1945.
   Whether preconditions for seisin of Court satisfied — DRC’s claim not
involving a question or dispute concerning interpretation of the Constitution —
DRC having further not shown that it followed the prior procedure for seisin of
the Court pursuant to Article XIV of the Unesco Constitution and Article 38 of
the Rules of Procedure of the Unesco General Conference — Article XIV, para-
graph 2, of the Unesco Constitution cannot serve to found the Court’s
jurisdiction.

                                         *

   (10) Article 14, paragraph 1, of the Montreal Convention for the Suppres-
sion of Unlawful Acts against the Safety of Civil Aviation of 23 September
1971.
   Whether preconditions for seisin of Court satisfied — Dispute concerning
the interpretation or application of the Convention which could not have been
settled by negotiation : DRC not having indicated the specific provisions of
the Convention which could apply to its claims on the merits — DRC having
further not shown that it made a proposal to Rwanda for the organization
of arbitration proceedings to which the latter failed to respond — Article 14,

                                                                                7

                       ARMED ACTIVITIES (JUDGMENT)                          10

paragraph 1, of the Montreal Convention cannot serve to found the Court’s
jurisdiction.

                                       *
   (11) Article 66 of the Vienna Convention on the Law of Treaties of 23 May
1969.
   Non-retroactivity of the Vienna Convention (Article 4) — Genocide Conven-
tion and Convention on Racial Discrimination concluded before the entry into
force between the Parties of the Vienna Convention — Rules in Article 66 of the
Vienna Convention not declaratory of customary international law — No agree-
ment between the Parties to apply Article 66 between themselves — Article 66
of the Vienna Convention on the Law of Treaties cannot serve to found the
Court’s jurisdiction.

                                      * *
   Admissibility of the DRC’s Application.
   No jurisdiction to entertain the Application — Court not required to rule on
its admissibility.

                                      * *
  Distinction between acceptance by States of the Court’s jurisdiction and the
conformity of their acts with international law — States remaining responsible
for acts attributable to them which are contrary to international law.

                               JUDGMENT

Present : President SHI ; Vice-President RANJEVA ; Judges KOROMA,
          VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS, REZEK,
          AL-KHASAWNEH, BUERGENTHAL, ELARABY, OWADA, SIMMA, TOMKA,
          ABRAHAM ; Judges ad hoc DUGARD, MAVUNGU ; Registrar COUVREUR.

 In the case concerning armed activities on the territory of the Congo (new
Application : 2002),
  between
the Democratic Republic of the Congo,
represented by
  H.E. Maître Honorius Kisimba Ngoy Ndalewe, Minister of Justice and
     Keeper of the Seals of the Democratic Republic of the Congo,
  as Head of Delegation ;
  H.E. Mr. Jacques Masangu-a-Mwanza, Ambassador Extraordinary and
     Plenipotentiary of the Democratic Republic of the Congo to the Kingdom
     of the Netherlands,
  as Agent ;

                                                                             8

                        ARMED ACTIVITIES (JUDGMENT)                     11

  Mr. Ntumba Luaba Lumu, Secretary-General to the Government, Professor
    of Law at the University of Kinshasa,
  as Co-Agent and Counsel ;
  Mr. Lwamba Katansi, Professor at the Law Faculty of the University of
    Kinshasa, avocat of the Kinshasa/Gombe Court of Appeal,
  Mr. Mukadi Bonyi, Professor at the Law Faculty of the University of Kin-
    shasa, avocat of the Supreme Court of Justice,
  Mr. Akele Adau, Professor and Honorary Dean of the Law Faculty of the
    University of Kinshasa, President of the Military High Court,
  as Counsel and Advocates ;
  Maître Crispin Mutumbe Mbuya, Legal Adviser to the Minister of Justice
    and Keeper of the Seals,
  Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice
    and Keeper of the Seals,
  Mr. Nsingi-zi-Mayemba, First Counsellor, Embassy of the Democratic
    Republic of the Congo in the Netherlands,
  Ms Marceline Masele, Second Counsellor, Embassy of the Democratic
    Republic of the Congo in the Netherlands,
  as Advisers ;
  Mr. Richard Lukunda,
  as Assistant to Counsel and Advocates,
  and
the Republic of Rwanda,
represented by
  Mr. Martin Ngoga, Deputy Prosecutor General of the Republic of
     Rwanda,
  as Agent ;
  H.E. Mr. Joseph Bonesha, Ambassador of the Republic of Rwanda to the
     Kingdom of Belgium,
  as Deputy Agent ;
  Mr. Christopher Greenwood, C.M.G., Q.C., Professor of International Law
     at the London School of Economics and Political Science, member of the
     English Bar,
  Ms Jessica Wells, member of the English Bar,
  as Counsel ;
  Ms Susan Greenwood,
  as Secretary,

  THE COURT,
  composed as above,
  after deliberation,
  delivers the following Judgment :
  1. On 28 May 2002 the Government of the Democratic Republic of the

                                                                         9

                        ARMED ACTIVITIES (JUDGMENT)                            12

Congo (hereinafter “the DRC”) filed in the Registry of the Court an Appli-
cation instituting proceedings against the Republic of Rwanda (hereinafter
“Rwanda”) in respect of a dispute concerning “massive, serious and flagrant
violations of human rights and of international humanitarian law” alleged to
have been committed “in breach of the ‘International Bill of Human Rights’,
other relevant international instruments and mandatory resolutions of the
United Nations Security Council” ; in that Application the DRC stated that
“[the] flagrant and serious violations [of human rights and of international
humanitarian law]” of which it complained “result from acts of armed aggres-
sion perpetrated by Rwanda on the territory of the Democratic Republic of
the Congo in flagrant breach of the sovereignty and territorial integrity of [the
latter], as guaranteed by the Charters of the United Nations and the Organiza-
tion of African Unity”.
   In order to found the jurisdiction of the Court, the DRC, referring to
Article 36, paragraph 1, of the Statute, invoked in its Application : Article 22
of the International Convention on the Elimination of All Forms of Racial
Discrimination of 21 December 1965 (hereinafter the “Convention on Racial
Discrimination”) ; Article 29, paragraph 1, of the Convention on the Elimina-
tion of All Forms of Discrimination against Women of 18 December 1979
(hereinafter the “Convention on Discrimination against Women”) ; Article IX
of the Convention on the Prevention and Punishment of the Crime of Geno-
cide of 9 December 1948 (hereinafter the “Genocide Convention”) ; Article 75
of the Constitution of the World Health Organization of 22 July 1946 (here-
inafter the “WHO Constitution”) ; Article XIV, paragraph 2, of the Constitu-
tion of the United Nations Educational, Scientific and Cultural Organization
of 16 November 1945 (hereinafter the “Unesco Constitution”) and Article 9
of the Convention on the Privileges and Immunities of the Specialized Agencies
of 21 November 1947 (hereinafter “the Convention on Privileges and Immuni-
ties”) ; Article 30, paragraph 1, of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984
(hereinafter the “Convention against Torture”) ; and Article 14, paragraph 1,
of the Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation of 23 September 1971 (hereinafter the “Montreal
Convention”).

  The DRC further contended in its Application that Article 66 of the Vienna
Convention on the Law of Treaties of 23 May 1969 established the jurisdiction
of the Court to settle disputes arising from the violation of peremptory norms
(jus cogens) in the area of human rights, as those norms were reflected in a
number of international instruments.
  2. On 28 May 2002, immediately after filing its Application, the DRC also
submitted a request for the indication of provisional measures pursuant to
Article 41 of the Statute of the Court and Articles 73 and 74 of its Rules.

  3. In accordance with Article 38, paragraph 4, and Article 73, paragraph 2,
of the Rules, on 28 May 2002 the Registrar transmitted certified copies of the
Application and of the request to the Rwandan Government ; in accordance
with Article 40, paragraph 3, of the Statute, all States entitled to appear before
the Court were notified of the Application.
  4. Since the Court included upon the Bench no judge of the nationality
of the Parties, each of them availed itself of the right conferred upon it by
Article 31 of the Statute to choose a judge ad hoc to sit in the case. The DRC

                                                                               10

                       ARMED ACTIVITIES (JUDGMENT)                            13

chose Mr. Jean-Pierre Mavungu, and Rwanda Mr. Christopher John Robert
Dugard.
  5. At the hearings on the request for the indication of provisional measures
submitted by the DRC, held on 13 and 14 June 2002, Rwanda asked the Court
to remove the case from the List for manifest lack of jurisdiction.

   By Order of 10 July 2002 the Court, after hearing the Parties, found that it
lacked prima facie jurisdiction to indicate the provisional measures requested
by the DRC. The Court also rejected Rwanda’s request that the case be
removed from the List.

    6. At a meeting held on 4 September 2002 by the President of the Court with
the Agents of the Parties pursuant to Article 31 of the Rules of Court, Rwanda
proposed that the procedure provided for in Article 79, paragraphs 2 and 3, of
the Rules of Court be followed, and that the questions of jurisdiction and
admissibility in the case therefore be determined separately before any proceed-
ings on the merits ; the DRC stated that it would leave the decision in this
regard to the Court. At the conclusion of that meeting the Parties agreed that,
in the event that this procedure was followed, Rwanda would first present a
Memorial dealing exclusively with those questions, to which the DRC would
reply in a Counter-Memorial confined to the same questions.
    By Order of 18 September 2002 the Court, taking account of the views of the
Parties regarding the procedure to be followed and the time-limits to be fixed,
decided that the written pleadings would first be addressed to the questions of
the jurisdiction of the Court to entertain the Application and of its admissibil-
ity and fixed 20 January 2003 and 20 May 2003 as respective time-limits for the
filing of a Memorial by Rwanda and of a Counter-Memorial by the DRC.
The Memorial and Counter-Memorial were filed within the time-limits so
prescribed.
    7. In accordance with instructions given by the Court under Article 43 of the
Rules of Court, the Registry sent the notification provided for in Article 63,
paragraph 1, of the Statute to all the States parties to the Convention on Dis-
crimination against Women, the WHO Constitution, the Unesco Constitution,
the Montreal Convention and the Vienna Convention on the Law of Treaties.

  In accordance likewise with instructions given by the Court under Article 69,
paragraph 3, of the Rules of Court, the Registry sent the notifications provided
for in Article 34, paragraph 3, of the Statute and communicated copies of the
written pleadings to the Secretary-General of the United Nations in respect of
the Convention on Discrimination against Women ; to the Director-General
of the WHO in respect of the WHO Constitution ; to the Director-General of
Unesco in respect of the Unesco Constitution and to the Secretary General of
the International Civil Aviation Organization in respect of the Montreal Con-
vention. The organizations concerned were also asked whether they intended to
submit observations in writing within the meaning of Article 69, paragraph 3,
of the Rules of Court. None of them expressed the wish to do so.

   8. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascer-
taining the views of the Parties, decided that copies of the pleadings and docu-
ments annexed would be made accessible to the public on the opening of the
oral proceedings.

                                                                              11

                       ARMED ACTIVITIES (JUDGMENT)                           14

  9. Public hearings were held between 4 and 8 July 2005, at which the Court
heard the oral arguments and replies of :
For Rwanda :    Mr. Martin Ngoga,
                Mr. Christopher Greenwood,
                Ms Jessica Wells.
For the DRC :   H.E. Mr. Jacques Masangu-a-Mwanza,
                Mr. Akele Adau,
                Mr. Lwamba Katansi,
                Mr. Ntumba Luaba Lumu,
                Mr. Mukadi Bonyi.

                                       *
   10. On the instructions of the Court, on 11 July 2005 the Registrar wrote to
the Parties asking them to send him copies of a certain number of documents
referred to by them at the hearings. Rwanda furnished the Court with copies
of those documents under cover of a letter dated 27 July 2005 received in the
Registry on 28 July 2005, to which were appended two notes from, respec-
tively, Rwanda’s Minister of Justice and the President of its Chamber of Depu-
ties. The DRC supplied the Court with copies of the requested documents
under cover of two letters dated 29 July and 10 August 2005 and received in
the Registry on 1 and 12 August respectively.

                                       *
  11. In its Application the DRC made the following requests :
       “Accordingly, while reserving the right to supplement and amplify this
    claim in the course of the proceedings, the Democratic Republic of the
    Congo requests the Court to :
    Adjudge and declare that :
    (a) Rwanda has violated and is violating the United Nations Charter
         (Article 2, paragraphs 3 and 4) by violating the human rights which
         are the goal pursued by the United Nations through the maintenance
         of international peace and security, as well as Articles 3 and 4 of the
         Charter of the Organization of African Unity ;
    (b) Rwanda has violated the International Bill of Human Rights, as well
         as the main instruments protecting human rights, including, inter
         alia, the Convention on the Elimination of Discrimination against
         Women, the International Convention on the Elimination of All
         Forms of Racial Discrimination, the Convention against Torture and
         Other Cruel, Inhuman or Degrading Treatment or Punishment, the
         Convention on the Prevention and Punishment of the Crime of
         Genocide of 9 December 1948, the Constitution of the WHO, the
         Constitution of Unesco ;
    (c) by shooting down a Boeing 727 owned by Congo Airlines on
         [10] October 1998 in Kindu, thereby causing the death of 40 civilians,
         Rwanda also violated the United Nations Charter, the Convention
         on International Civil Aviation of 7 December 1944 signed at
         Chicago, the Hague Convention for the Suppression of Unlawful
         Seizure of Aircraft of 16 December 1970 and the Montreal Conven-

                                                                             12

                       ARMED ACTIVITIES (JUDGMENT)                             15

          tion for the Suppression of Unlawful Acts against the Safety of Civil
          Aviation of 23 September 1971 ;
    (d) by killing, massacring, raping, throat-cutting, and crucifying, Rwanda
          is guilty of genocide against more than 3,500,000 Congolese, includ-
          ing the victims of the recent massacres in the city of Kisangani, and
          has violated the sacred right to life provided for in the Universal Dec-
          laration of Human Rights and in the International Covenant on Civil
          and Political Rights, the Convention on the Prevention and Punish-
          ment of the Crime of Genocide and other relevant international legal
          instruments.
       In consequence, and in accordance with the international legal obliga-
    tions referred to above, to adjudge and declare that :
    (1) all Rwandan armed forces responsible for the aggression shall forth-
         with quit the territory of the Democratic Republic of the Congo, so as
         to enable the Congolese people to enjoy in full their rights to peace, to
         security, to their resources and to development ;
    (2) Rwanda is under an obligation to procure the immediate, uncondi-
         tional withdrawal of its armed and other forces from Congolese terri-
         tory ;
    (3) the Democratic Republic of the Congo is entitled to compensation
         from Rwanda for all acts of looting, destruction, massacre, removal of
         property and persons and other acts of wrongdoing imputable to
         Rwanda, in respect of which the Democratic Republic of the Congo
         reserves the right to establish a precise assessment of injury at a later
         date, in addition to restitution of the property taken.
       It also reserves the right in the course of the proceedings to claim other
    injury suffered by it and its people.”
  12. In the written proceedings, the following submissions were presented by
the Parties :
On behalf of the Rwandan Government,
in the Memorial :
     “Accordingly, Rwanda requests the Court to adjudge and declare that :
     The Court lacks jurisdiction to entertain the claims brought by the
    Democratic Republic of the Congo. In addition, the claims brought by the
    Democratic Republic of the Congo are inadmissible.”
On behalf of the Government of the Democratic Republic of the Congo,
in the Counter-Memorial :
       “For these reasons, may it please the Court,
       To find that the objections to jurisdiction raised by Rwanda are
    unfounded ;
       To find that the objections to admissibility raised by Rwanda are
    unfounded ;
       And, consequently, to find that the Court has jurisdiction to entertain
    the case on the merits and that the Application of the Democratic Repub-
    lic of the Congo is admissible as submitted ;
       To decide to proceed with the case.”

                                                                               13

                       ARMED ACTIVITIES (JUDGMENT)                           16

  13. At the hearings, the following submissions were presented by the Parties :

On behalf of the Rwandan Government,
at the hearing of 6 July 2005 :
      “For the reasons given in our written preliminary objection and at the
    oral hearings, the Republic of Rwanda requests the Court to adjudge and
    declare that :
    1. it lacks jurisdiction over the claims brought against the Republic of
       Rwanda by the Democratic Republic of the Congo ; and

    2. in the alternative, that the claims brought against the Republic of
       Rwanda by the Democratic Republic of the Congo are inadmissible.”
On behalf of the Congolese Government,
at the hearing of 8 July 2005 :
      “May it please the Court,
    1. to find that the objections to jurisdiction and admissibility raised by
       Rwanda are unfounded ;
    2. consequently, to find that the Court has jurisdiction to entertain the
       case on the merits and that the Application of the Democratic Republic
       of the Congo is admissible as submitted ;
    3. to decide to proceed with the case on the merits.”

                                    * * *
   14. The Court notes first of all that at the present stage of the proceed-
ings it cannot consider any matter relating to the merits of this dispute
between the DRC and Rwanda. In accordance with the decision taken in
its Order of 18 September 2002 (see paragraph 6 above), the Court is
required to address only the questions of whether it is competent to hear
the dispute and whether the DRC’s Application is admissible.

                                    * * *
   15. In order to found the jurisdiction of the Court in this case, the
DRC relies in its Application on a certain number of compromissory
clauses in international conventions, namely : Article 22 of the Conven-
tion on Racial Discrimination ; Article 29, paragraph 1, of the Conven-
tion on Discrimination against Women ; Article IX of the Genocide Con-
vention ; Article 75 of the WHO Constitution ; Article XIV, paragraph 2,
of the Unesco Constitution and Article 9 of the Convention on Privileges
and Immunities ; Article 30, paragraph 1, of the Convention against Tor-
ture ; and Article 14, paragraph 1, of the Montreal Convention. It further
contends that Article 66 of the Vienna Convention on the Law of
Treaties establishes the jurisdiction of the Court to settle disputes arising
from the violation of peremptory norms (jus cogens) in the area of

                                                                             14

                      ARMED ACTIVITIES (JUDGMENT)                         17

human rights, as those norms are reflected in a number of international
instruments (see paragraph 1 above).

   For its part Rwanda contends that none of these instruments cited by
the DRC “or rules of customary international law can found the jurisdic-
tion of the Court in the present case”. In the alternative, Rwanda argues
that, even if one or more of the compromissory clauses invoked by the
DRC were to be found by the Court to be titles giving it jurisdiction
to entertain the Application, the latter would be “nevertheless inadmis-
sible”.

                                        *
   16. The Court will begin by recalling that, in its Order of 10 July 2002
(I.C.J. Reports 2002, p. 242, para. 61), it noted Rwanda’s statement that
it “is not, and never has been, party to the 1984 Convention against Tor-
ture”, and found that such was indeed the case. In its Memorial on juris-
diction and admissibility (hereinafter “Memorial”) Rwanda maintained
its contention that it was not a party to this Convention and that, accord-
ingly, that Convention manifestly could not provide a basis for the
jurisdiction of the Court in these proceedings. The DRC did not
raise any argument in response to this contention by Rwanda, either in
its Counter-Memorial on jurisdiction and admissibility (hereinafter
“Counter-Memorial”) or at the hearings. The Court accordingly con-
cludes that the DRC cannot rely upon the Convention against Torture
as a basis of jurisdiction in this case.

   17. The Court further recalls that in the above-mentioned Order (ibid.,
p. 243, para. 62) it also stated that, in the final form of its argument, the
DRC did not appear to found the jurisdiction of the Court on the Con-
vention on Privileges and Immunities, and that the Court was accord-
ingly not required to take that instrument into consideration in the
context of the request for the indication of provisional measures. Since
the DRC has also not sought to invoke that instrument in the present
phase of the proceedings, the Court will not take it into consideration
in the present Judgment.

                                    *       *
  18. The Court notes moreover that, both in its Counter-Memorial and
at the hearings, the DRC began by seeking to found the jurisdiction of
the Court on two additional bases : respectively, the doctrine of forum
prorogatum and the Court’s Order of 10 July 2002 on the DRC’s request
for the indication of provisional measures. The Court will first examine
these two bases of jurisdiction relied on by the DRC before then proceed-
ing to consider the compromissory clauses which the DRC invokes.

                                                                          15

                      ARMED ACTIVITIES (JUDGMENT)                        18

  In accordance with its established jurisprudence, the Court will
examine the issue of the admissibility of the DRC’s Application only
should it find that it has jurisdiction to entertain that Application.

                                  * * *
   19. The DRC argues, first, that the willingness of a State to submit a
dispute to the Court may be apparent not only from an express declara-
tion but also from any conclusive act, in particular from the conduct of
the respondent State subsequent to seisin of the Court. In particular it
contends that “the Respondent’s agreement to plead implies that it
accepts the Court’s jurisdiction”. In this regard the DRC cites the fact
that Rwanda has “complied with all the procedural steps prescribed or
requested by the Court”, that it has “fully and properly participated in
the different procedures in this case, without having itself represented or
failing to appear”, and that “it has not refused to appear before the
Court or to make submissions”.
   20. For its part Rwanda contends that the DRC’s argument is without
foundation, since in this case there has been no “voluntary and indisput-
able acceptance of the Court’s jurisdiction”. Rwanda points out that it
has, on the contrary, consistently asserted that the Court has no jurisdic-
tion and that it has appeared solely for the purpose of challenging that
jurisdiction. Rwanda further observes that “if [the DRC’s argument] is
right, then there is no way that a State can challenge the jurisdiction of
[the] Court without conceding that the Court has jurisdiction”, and that
therefore “[t]he only safe course . . . is for a respondent State not to
appear before the Court at all”. It contends that this argument by the
DRC flies in the face of the Statute of the Court, its Rules and its juris-
prudence.

                                     *
   21. The Court recalls its jurisprudence, as well as that of its predeces-
sor, the Permanent Court of International Justice, regarding the forms
which the parties’ expression of their consent to its jurisdiction may take.
According to that jurisprudence, “neither the Statute nor the Rules
require that this consent should be expressed in any particular form”,
and “there is nothing to prevent the acceptance of jurisdiction . . . from
being effected by two separate and successive acts, instead of jointly and
beforehand by a special agreement” (Corfu Channel (United Kingdom v.
Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947-
1948, pp. 27-28 ; see also Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 23). The
attitude of the respondent State must, however, be capable of being
regarded as “an unequivocal indication” of the desire of that State to
accept the Court’s jurisdiction in a “voluntary and indisputable” manner

                                                                         16

                      ARMED ACTIVITIES (JUDGMENT)                         19

(Corfu Channel (United Kingdom v. Albania), Preliminary Objection,
Judgment, 1948, I.C.J. Reports 1947-1948, p. 27) ; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Pro-
visional Measures, Order of 13 September 1993, I.C.J. Reports 1993,
p. 342, para. 34 ; see also Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24).
   22. In the present case the Court will confine itself to noting that
Rwanda has expressly and repeatedly objected to its jurisdiction at every
stage of the proceedings (see Armed Activities on the Territory of the
Congo (New Application : 2002) (Democratic Republic of the Congo v.
Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports
2002, pp. 234, 238). Rwanda’s attitude therefore cannot be regarded as
“an unequivocal indication” of its desire to accept the jurisdiction of the
Court in a “voluntary and indisputable” manner. The fact, as the DRC
has pointed out, that Rwanda has “fully and properly participated in the
different procedures in this case, without having itself represented or fail-
ing to appear”, and that “it has not refused to appear before the Court or
make submissions”, cannot be interpreted as consent to the Court’s juris-
diction over the merits, inasmuch as the very purpose of this participa-
tion was to challenge that jurisdiction (Anglo-Iranian Oil Co. (United
Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952,
pp. 113-114).

                                   * * *
   23. To found the jurisdiction of the Court in this case, the DRC also
relies on one of the Court’s findings in its Order of 10 July 2002, whereby
it stated that, “in the absence of a manifest lack of jurisdiction, the Court
cannot grant Rwanda’s request that the case be removed from the List”.
In the DRC’s view, this finding of an “absence of a manifest lack of juris-
diction” could be interpreted as an acknowledgment by the Court that it
has jurisdiction. Thus the DRC has expressed its belief that, “in rejecting
Rwanda’s request for the removal from the List of the application on the
merits, the Court could only have intended that crimes such as those
committed by the Respondent must not remain unpunished”.

  24. On this point, for its part Rwanda recalls that in this same Order
the Court clearly stated that the findings reached by it at that stage in the
proceedings in no way prejudged the question of its jurisdiction to deal
with the merits of the case. Rwanda observes in this regard that a finding
by the Court in an Order of this kind that there is no manifest lack of
jurisdiction, coupled, moreover, with a finding that there is no prima facie
basis for jurisdiction, cannot afford any support to the argument of a
State seeking to establish the Court’s jurisdiction. Rwanda points out
that “[t]he Court does not possess jurisdiction simply because there is an

                                                                          17

                       ARMED ACTIVITIES (JUDGMENT)                         20

absence of a manifest lack of jurisdiction ; it possesses jurisdiction only if
there is a positive presence of jurisdiction”.

                                      *
   25. The Court observes that, given the urgency which, ex hypothesi,
characterizes the consideration of requests for the indication of provi-
sional measures, it does not normally at that stage take a definitive deci-
sion on its jurisdiction. It does so only if it is apparent from the outset
that there is no basis on which jurisdiction could lie, and that it therefore
cannot entertain the case. Where the Court finds such a manifest lack of
jurisdiction, considerations of the sound administration of justice dictate
that it remove the case in question from the List (Legality of Use of Force
(Yugoslavia v. Spain), Order of 2 June 1999, I.C.J. Reports 1999 (II),
pp. 773-774, para. 40 ; Legality of Use of Force (Yugoslavia v. United
States of America), Order of 2 June 1999, I.C.J. Reports 1999 (II),
pp. 925-926, para. 34). Where, on the other hand, the Court is unable to
conclude that it manifestly lacks jurisdiction, it retains the case on the
List and reserves the right subsequently to consider further the question
of jurisdiction, making it clear, as it did in its Order of 10 July 2002, that
“the findings reached by [it] in the present proceedings in no way pre-
judge the question of [its] jurisdiction . . . to deal with the merits of the
case or any questions relating to the admissibility of the Application, or
relating to the merits themselves” (Armed Activities on the Territory
of the Congo (New Application : 2002) (Democratic Republic of the
Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J.
Reports 2002, p. 249, para. 90 ; see also Anglo-Iranian Oil Co. (United
Kingdom v. Iran), Interim Protection, Order of 5 July 1951, I.C.J.
Reports 1951, p. 114 ; Fisheries Jurisdiction (Federal Republic of Ger-
many v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J.
Reports 1972, p. 34, para. 21 ; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Provisional
Measures, Order of 10 May 1984, I.C.J. Reports 1984, p. 186, para. 40 ;
Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional
Measures, Order of 2 March 1990, I.C.J. Reports 1990, p. 69, para. 23 ;
Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999 (II), pp. 139-140, para. 46).

  The fact that in its Order of 10 July 2002 the Court did not conclude
that it manifestly lacked jurisdiction cannot therefore amount to an
acknowledgment that it has jurisdiction. On the contrary, from the outset
the Court had serious doubts regarding its jurisdiction to entertain the
DRC’s Application, for in that same Order it justified its refusal to indi-
cate provisional measures by the lack of prima facie jurisdiction. In
declining Rwanda’s request to remove the case from the List, the Court
simply reserved the right fully to examine further the issue of its jurisdic-

                                                                           18

                         ARMED ACTIVITIES (JUDGMENT)                       21

tion at a later stage. It is precisely such a further examination which is the
object of the present phase of the proceedings.

                                   * * *
   26. Having concluded that the two additional bases of jurisdiction
invoked by the DRC cannot be accepted, the Court must now consider
the compromissory clauses referred to in the Application, with the excep-
tion of those contained in the Convention against Torture and the Con-
vention on Privileges and Immunities (see paragraphs 16 and 17 above).

   27. The Court will examine in the following order the compromissory
clauses invoked by the DRC : Article IX of the Genocide Convention ;
Article 22 of the Convention on Racial Discrimination ; Article 29, para-
graph 1, of the Convention on Discrimination against Women ; Article 75
of the WHO Constitution ; Article XIV, paragraph 2, of the Unesco
Constitution ; Article 14, paragraph 1, of the Montreal Convention ;
Article 66 of the Vienna Convention on the Law of Treaties.

                                   * * *
  28. In its Application the DRC contends that Rwanda has violated
Articles II and III of the Genocide Convention.
  Article II of that Convention prohibits :
     “any of the following acts committed with intent to destroy, in
     whole or in part, a national, ethnical, racial or religious group, as
     such :
     (a) Killing members of the group ;
     (b) Causing serious bodily or mental harm to members of the
          group ;
     (c) Deliberately inflicting on the group conditions of life calculated
          to bring about its physical destruction in whole or in part ;
     (d) Imposing measures intended to prevent births within the group ;
     (e) Forcibly transferring children of the group to another group.”
Article III provides :
       “The following acts shall be punishable :
     (a) Genocide ;
     (b) Conspiracy to commit genocide ;
     (c) Direct and public incitement to commit genocide ;
     (d) Attempt to commit genocide ;
     (e) Complicity in genocide.”
  In order to found the jurisdiction of the Court to entertain its claim,
the DRC invokes Article IX of the Convention, which reads as follows :

                                                                           19

                      ARMED ACTIVITIES (JUDGMENT)                       22

       “Disputes between the Contracting Parties relating to the interpre-
    tation, application or fulfilment of the present Convention, including
    those relating to the responsibility of a State for genocide or for any
    of the other acts enumerated in article III, shall be submitted to the
    International Court of Justice at the request of any of the parties to
    the dispute.”
  29. Rwanda argued in its Memorial that the jurisdiction of the Court
under the Genocide Convention was excluded by its reservation to the
entirety of Article IX. In its Counter-Memorial the DRC disputed the
validity of that reservation. At the hearings it further contended that
Rwanda had withdrawn its reservation ; to that end it cited a Rwandan
décret-loi of 15 February 1995 and a statement of 17 March 2005 by
Rwanda’s Minister of Justice at the Sixty-first Session of the United
Nations Commission on Human Rights. Rwanda has denied the DRC’s
contention that it has withdrawn its reservation to Article IX of the
Genocide Convention. The Court will therefore begin by examining
whether Rwanda has in fact withdrawn its reservation. Only if it finds
that Rwanda has maintained its reservation will the Court need to
address the DRC’s arguments concerning the reservation’s validity.

                                   *   *
   30. As just stated, the DRC claimed at the hearings that Rwanda had
withdrawn its reservation to Article IX of the Genocide Convention.
Thus the DRC argued that, in Article 15 of the Protocol of Agreement
on Miscellaneous Issues and Final Provisions signed between the
Government of Rwanda and the Rwandan Patriotic Front at Arusha on
3 August 1993, Rwanda undertook to withdraw all reservations made by
it when it became party to treaty instruments “on human rights”. The
DRC contends that Rwanda implemented that undertaking by adopting
décret-loi No. 014/01 of 15 February 1995, whereby the Broad-Based
Transitional Government allegedly withdrew all reservations made by
Rwanda at the accession, approval and ratification of international instru-
ments relating to human rights.
   31. In this regard the DRC observed that the Arusha Peace Agreement
concluded on 4 August 1993 between the Government of Rwanda and
the Rwandan Patriotic Front, of which the above-mentioned Protocol
forms an integral part, was not a mere internal political agreement,
as Rwanda contended, but a text which under Rwandan law, namely
Article 1 of the Fundamental Law of the Rwandese Republic adopted by
the Transitional National Assembly on 26 May 1995, formed part
of the “constitutional ensemble”. The DRC argued, furthermore, that
Rwanda’s contention that décret-loi No. 014/01 had fallen into desuetude
or lapsed because it was not confirmed by the new parliament was
unfounded. According to the DRC, “[i]f the Rwandan parliament did not
confirm the Order in Council, without, however leaving any trace of this

                                                                        20

                       ARMED ACTIVITIES (JUDGMENT)                         23

volte-face, that is neither more nor less than . . . a ‘wrongful act’ ; and it
was a universal principle of law that ‘no one may profit by his own wrong-
doing’ ”. The DRC maintained moreover that the décret-loi was not sub-
ject to the procedure of approval by parliament, since, under Congolese
and Rwandan law, both of which had been influenced by Belgian law, a
décret-loi was a measure enacted by the executive branch in cases of
emergency when parliament is in recess ; if these conditions were satisfied,
parliamentary approval was not necessary, save in the case of a consti-
tutional décret-loi, which was not the case for décret-loi No. 014/01.
   32. The DRC further argued that the fact that withdrawal of the reser-
vation was not notified to the United Nations Secretary-General could
not be relied on against third States, since Rwanda expressed its intention
to withdraw the reservation in a legislative text, namely the décret-loi of
15 February 1995. According to the DRC, the failure to notify that
décret-loi to the United Nations Secretary-General has no relevance in
this case, since it is not the act of notification to an international organi-
zation which gives validity “to a domestic administrative enactment, but
rather its promulgation and/or publication by the competent national
authority”.
   33. Finally, the DRC contended that Rwanda’s withdrawal of its reser-
vation to Article IX of the Genocide Convention was corroborated by a
statement by the latter’s Minister of Justice on 17 March 2005 at the
Sixty-first Session of the United Nations Commission on Human Rights.
The Minister there announced that “the few [human rights] instruments
not yet ratified” at that date by Rwanda, as well as reservations “not yet
withdrawn”, would “shortly be ratified . . . [or] withdrawn”. In the
DRC’s view, this statement meant that there were reservations, including
that made by Rwanda in respect of Article IX of the Genocide Conven-
tion, which had already been withdrawn by that State in 1995. The DRC
added that the statement by the Rwandan Minister of Justice “gave
material form at international level to the . . . decision taken by the
Rwandan Government [in February 1995] to withdraw all reservations to
human rights treaties”, and that this statement, “made within one of the
most representative forums of the international community, the United
Nations Commission on Human Rights, . . . [did] indeed bind the
Rwandan State”.

   34. For its part, Rwanda contended at the hearings that it had never
taken any measure to withdraw its reservation to Article IX of the Geno-
cide Convention.
   As regards the Arusha Peace Agreement of 4 August 1993, Rwanda
considered that this was not an international instrument but a series of
agreements concluded between the Government of Rwanda and the
Rwandan Patriotic Front, that is to say an internal agreement which did
not create any obligation on Rwanda’s part to another State or to the
international community as a whole.
   Rwanda further observed that Article 15 of the Protocol of Agreement

                                                                           21

                      ARMED ACTIVITIES (JUDGMENT)                        24

on Miscellaneous Issues and Final Provisions of 3 August 1993 made no
express reference to the Genocide Convention and did not specify whether
the reservations referred to comprised both those concerning procedural
provisions, including provisions relating to the jurisdiction of the Court,
and those concerning substantive provisions.
   35. In regard to décret-loi No. 014/01 of 15 February 1995, Rwanda
pointed out that this text, like Article 15 of the Protocol of Agreement,
was drawn in very general terms, since it “authorized the withdrawal of
all reservations entered into by Rwanda to all international agreements”.
Rwanda further stated that, “under the constitutional instruments then
in force in Rwanda, a decree of this kind had to be approved by Parlia-
ment — at that time called the Transitional National Assembly — at its
session immediately following the adoption of the decree”. Rwanda
points out that, at the session immediately following the adoption of
décret-loi No. 014/01, which took place between 12 April and 11 July 1995,
the Order was not approved, and therefore lapsed.

   36. Rwanda further observed that it had never notified withdrawal of
its reservation to Article IX of the Genocide Convention to the United
Nations Secretary-General, or taken any measure to withdraw it, and
that only such formal action on the international plane could constitute
the definitive position of a State in regard to its treaty obligations.

   37. Regarding the statement made on 17 March 2005 at the Sixty-first
Session of the United Nations Commission on Human Rights by its Min-
ister of Justice, Rwanda contends that in her speech the Minister simply
restated Rwanda’s intention to lift “unspecified” reservations to “unspeci-
fied” human rights treaties “at some time in the future”. Rwanda notes
that the statement was inconsistent with the argument of the DRC that it
had already withdrawn those same reservations in 1995. It further
observes that the statement could not bind it or oblige it to withdraw “a
particular reservation”, since it was made by a Minister of Justice and
not by a Foreign Minister or Head of Government, “with automatic
authority to bind the State in matters of international relations”. Finally,
Rwanda asserts that a statement given in a forum such as the United
Nations Commission on Human Rights, almost three years after the
institution of the present proceedings before the Court, cannot have any
effect on the issue of jurisdiction, which “has to be judged by reference to
the situation as it existed at the date the Application was filed”.

                                     *
 38. The Court notes that both the DRC and Rwanda are parties to the
Genocide Convention, the DRC having acceded on 31 May 1962 and

                                                                         22

                       ARMED ACTIVITIES (JUDGMENT)                            25

Rwanda on 16 April 1975. The Court observes, however, that Rwanda’s
instrument of accession to the Convention, as deposited with the
Secretary-General of the United Nations, contains a reservation worded
as follows : “The Rwandese Republic does not consider itself as bound
by Article IX of the Convention.”
   39. The Court also notes that the Parties take opposing views, first on
whether, in adopting décret-loi No. 014/01 of 15 February 1995, Rwanda
effectively withdrew its reservation to Article IX of the Genocide Con-
vention and, secondly, on the question of the legal effect of the statement
by Rwanda’s Minister of Justice at the Sixty-first Session of the United
Nations Commission on Human Rights. The Court will accordingly
address in turn each of these two questions.

   40. In regard to the first question, the Court notes that an instrument
entitled “Décret-loi No. 014/01 of 15 February 1995 withdrawing all
reservations entered by the Rwandese Republic at the accession, approval
and ratification of international instruments” was adopted on 15 Febru-
ary 1995 by the President of the Rwandese Republic following an
Opinion of the Council of Ministers and was countersigned by the Prime
Minister and Minister of Justice of the Rwandese Republic. Article 1 of this
décret-loi, which contains three articles, provides that “[a]ll reservations
entered by the Rwandese Republic in respect of the accession, approval
and ratification of international instruments are withdrawn” ; Article 2
states that “[a]ll prior provisions contrary to the present décret-loi are
abrogated” ; while Article 3 provides that “[t]his décret-loi shall enter into
force on the day of its publication in the Official Journal of the Rwandese
Republic”. The décret-loi was published in the Official Journal of the
Rwandese Republic, on a date of which the Court has not been apprised,
and entered into force.
   41. The validity of this décret-loi under Rwandan domestic law has
been denied by Rwanda. However, in the Court’s view the question of the
validity and effect of the décret-loi within the domestic legal order of
Rwanda is different from that of its effect within the international legal
order. Thus a clear distinction has to be drawn between a decision to with-
draw a reservation to a treaty taken within a State’s domestic legal order
and the implementation of that decision by the competent national authori-
ties within the international legal order, which can be effected only by noti-
fication of withdrawal of the reservation to the other States parties to the
treaty in question. It is a rule of international law, deriving from the prin-
ciple of legal security and well established in practice, that, subject to agree-
ment to the contrary, the withdrawal by a contracting State of a reser-
vation to a multilateral treaty takes effect in relation to the other con-
tracting States only when they have received notification thereof. This rule
is expressed in Article 22, paragraph 3 (a), of the Vienna Convention
on the Law of Treaties, which provides as follows : “3. Unless the Treaty
otherwise provides, or it is otherwise agreed : (a) the withdrawal of a reser-
vation becomes operative in relation to another Contracting State only when

                                                                              23

                      ARMED ACTIVITIES (JUDGMENT)                         26

notice of it has been received by that State.” Article 23, paragraph 4, of
that same Convention further provides that “[t]he withdrawal of a reserva-
tion or of an objection to a reservation must be formulated in writing”.
   42. The Court observes that in this case it has not been shown that
Rwanda notified the withdrawal of its reservations to the other States
parties to the “international instruments” referred to in Article 1 of
décret-loi No. 014/01 of 15 February 1995, and in particular to the States
parties to the Genocide Convention. Nor has it been shown that there
was any agreement whereby such withdrawal could have become opera-
tive without notification. In the Court’s view, the adoption of that décret-
loi and its publication in the Official Journal of the Rwandese Republic
cannot in themselves amount to such notification. In order to have effect
in international law, the withdrawal would have had to be the subject of
a notice received at the international level.
   43. The Court notes that, as regards the Genocide Convention, the
Government of Rwanda has taken no action at international level on the
basis of the décret-loi. It observes that this Convention is a multilateral
treaty whose depositary is the Secretary-General of the United Nations,
and it considers that it was normally through the latter that Rwanda
should have notified withdrawal of its reservation. Thus the Court notes
that, although the Convention does not deal with the question of reser-
vations, Article XVII thereof confers particular responsibilities on the
United Nations Secretary-General in respect of notifications to States
parties to the Convention or entitled to become parties ; it is thus in prin-
ciple through the medium of the Secretary-General that such States must
be informed both of the making of a reservation to the Convention and
of its withdrawal. Rwanda notified its reservation to Article IX of the
Genocide Convention to the Secretary-General. However, the Court does
not have any evidence that Rwanda notified the Secretary-General of the
withdrawal of this reservation.
   44. In light of the foregoing, the Court finds that the adoption and
publication of décret-loi No. 014/01 of 15 February 1995 by Rwanda did
not, as a matter of international law, effect a withdrawal by that State of
its reservation to Article IX of the Genocide Convention.

                                     *
   45. The Court will now turn to the second question, that of the legal
effect of the statement made on 17 March 2005 by Ms Mukabagwiza,
Minister of Justice of Rwanda, at the Sixty-first Session of the United
Nations Commission on Human Rights. At the hearings the DRC cited
this statement and contended that it could be interpreted as corro-
borating Rwanda’s withdrawal of its reservation to Article IX of the
Genocide Convention, or as constituting a unilateral commitment
having legal effects in regard to the withdrawal of that reservation. In
her statement Ms Mukabagwiza said inter alia the following :

                                                                          24

                       ARMED ACTIVITIES (JUDGMENT)                         27

       “Rwanda is one of the countries that has ratified the greatest
    number of international human rights instruments. In 2004 alone,
    our Government ratified ten of them, including those concerning the
    rights of women, the prevention and repression of corruption, the
    prohibition of weapons of mass destruction, and the environment.
    The few instruments not yet ratified will shortly be ratified and past
    reservations not yet withdrawn will shortly be withdrawn.”

   46. The Court will begin by examining Rwanda’s argument that it
cannot be legally bound by the statement in question inasmuch as a state-
ment made not by a Foreign Minister or a Head of Government “with
automatic authority to bind the State in matters of international rela-
tions, but by a Minister of Justice, cannot bind the State to lift a particu-
lar reservation”. In this connection, the Court observes that, in accord-
ance with its consistent jurisprudence (Nuclear Tests (Australia v.
France), Judgment, I.C.J. Reports 1974, pp. 269-270, paras. 49-51; Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objec-
tions, Judgment, I.C.J. Reports 1996 (II), p. 622, para. 44 ; Arrest War-
rant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment, I.C.J. Reports 2002, pp. 21-22, para. 53 ; see also Legal Status
of Eastern Greenland (Denmark v. Norway), Judgment, 1933, P.C.I.J.,
Series A/B, No. 53, p. 71), it is a well-established rule of international law
that the Head of State, the Head of Government and the Minister for
Foreign Affairs are deemed to represent the State merely by virtue of
exercising their functions, including for the performance, on behalf of the
said State, of unilateral acts having the force of international commit-
ments. The Court moreover recalls that, in the matter of the conclusion
of treaties, this rule of customary law finds expression in Article 7, para-
graph 2, of the Vienna Convention on the Law of Treaties, which pro-
vides that
    “[i]n virtue of their functions and without having to produce full
    powers, the following are considered as representing their State :
    (a) Heads of State, Heads of Government and Ministers for For-
    eign Affairs, for the purpose of performing all acts relating to the
    conclusion of a treaty”.
   47. The Court notes, however, that with increasing frequency in
modern international relations other persons representing a State in
specific fields may be authorized by that State to bind it by their state-
ments in respect of matters falling within their purview. This may be
true, for example, of holders of technical ministerial portfolios exercising
powers in their field of competence in the area of foreign relations, and
even of certain officials.
   48. In this case, the Court notes first that Ms Mukabagwiza spoke
before the United Nations Commission on Human Rights in her capacity

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                       ARMED ACTIVITIES (JUDGMENT)                            28

as Minister of Justice of Rwanda and that she indicated inter alia that
she was making her statement “on behalf of the Rwandan people”. The
Court further notes that the questions relating to the protection of
human rights which were the subject of that statement fall within the pur-
view of a Minister of Justice. It is the Court’s view that the possibility
cannot be ruled out in principle that a Minister of Justice may, under
certain circumstances, bind the State he or she represents by his or her
statements. The Court cannot therefore accept Rwanda’s argument that
Ms Mukabagwiza could not, by her statement, bind the Rwandan State
internationally, merely because of the nature of the functions that she
exercised.
   49. In order to determine the legal effect of that statement, the Court
must, however, examine its actual content as well as the circumstances
in which it was made (Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, pp. 269-270, para. 51 ; Frontier Dispute (Burkina
Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 573-574,
paras. 39-40).
   50. On the first point, the Court recalls that a statement of this kind
can create legal obligations only if it is made in clear and specific terms
(see Nuclear Tests (Australia v. France) (New Zealand v. France),
I.C.J. Reports 1974, p. 267, para. 43 ; p. 269, para. 51 ; p. 472, para. 46 ;
p. 474, para. 53). In this regard the Court observes that in her statement
the Minister of Justice of Rwanda indicated that “past reservations not
yet withdrawn [would] shortly be withdrawn”, without referring explicitly
to the reservation made by Rwanda to Article IX of the Genocide Con-
vention. The statement merely raises in general terms the question of
Rwandan reservations. As such, the expression “past reservations not yet
withdrawn” refers without distinction to any reservation made by Rwanda
to any international treaty to which it is a party. Viewed in its context,
this expression may, it is true, be interpreted as referring solely to the reser-
vations made by Rwanda to “international human rights instruments”,
to which reference is made in an earlier passage of the statement. In this
connection the Court notes, however, that the international instruments
in question must in the circumstances be understood in a broad sense,
since, according to the statement itself, they appear to encompass not
only instruments “concerning the rights of women” but also those con-
cerning “the prevention and repression of corruption, the prohibition of
weapons of mass destruction, and the environment”. The Court is there-
fore bound to note the indeterminate character of the international trea-
ties referred to by the Rwandan Minister of Justice in her statement.

  51. The Court further observes that this statement merely indicates
that “past reservations not yet withdrawn will shortly be withdrawn”,
without indicating any precise time-frame for such withdrawals.

  52. It follows from the foregoing that the statement by the Rwandan

                                                                              26

                      ARMED ACTIVITIES (JUDGMENT)                         29

Minister of Justice was not made in sufficiently specific terms in relation
to the particular question of the withdrawal of reservations. Given the
general nature of its wording, the statement cannot therefore be con-
sidered as confirmation by Rwanda of a previous decision to withdraw
its reservation to Article IX of the Genocide Convention, or as any sort
of unilateral commitment on its part having legal effects in regard to
such withdrawal ; at most, it can be interpreted as a declaration of intent,
very general in scope.
   53. This conclusion is corroborated by an examination of the circum-
stances in which the statement was made. Thus the Court notes that it
was in the context of a presentation of general policy on the promotion
and protection of human rights that the Minister of Justice of Rwanda
made her statement before the United Nations Commission on Human
Rights.
   54. Finally, the Court will address Rwanda’s argument that the state-
ment by its Minister of Justice could not in any event have any implica-
tions for the question of the Court’s jurisdiction in this case, since it was
made nearly three years after the institution of the proceedings. In this
connection, the Court recalls that it has consistently held that, while its
jurisdiction must surely be assessed on the date of the filing of the act
instituting proceedings (Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
p. 613, para. 26 ; Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 12, para. 26),
the Court should not, however, penalize a defect in procedure which the
Applicant could easily remedy (Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), p. 613, para. 26). In the present case, if the Rwandan
Minister’s statement had somehow entailed the withdrawal of Rwanda’s
reservation to Article IX of the Genocide Convention in the course
of the proceedings, the DRC could on its own initiative have remedied the
procedural defect in its original Application by filing a new Application.
This argument by Rwanda must accordingly be rejected.

  55. Having concluded that the DRC’s contention that Rwanda has
withdrawn its reservation to Article IX of the Genocide Convention is
unfounded, the Court must now turn to the DRC’s argument that this
reservation is invalid.

                                    *   *
  56. In order to show that Rwanda’s reservation is invalid, the DRC
maintains that the Genocide Convention has “the force of general law
with respect to all States” including Rwanda, inasmuch as it contains
norms of jus cogens. The DRC further stated at the hearings that,

                                                                          27

                      ARMED ACTIVITIES (JUDGMENT)                        30

“in keeping with the spirit of Article 53 of the Vienna Convention”,
Rwanda’s reservation to Article IX of the Genocide Convention is null
and void, because it seeks to “prevent the . . . Court from fulfilling its
noble mission of safeguarding peremptory norms”. Hence the fact that
the DRC had not objected to that reservation was of no consequence
in the present proceedings.
   57. The DRC also contends that Rwanda’s reservation is incompatible
with the object and purpose of the Convention, since
    “its effect is to exclude Rwanda from any mechanism for the moni-
    toring and prosecution of genocide, whereas the object and purpose
    of the Convention are precisely the elimination of impunity for this
    serious violation of international law”.
   58. The DRC further argues that Rwanda’s reservation is irrelevant in
the light of the evolution of the international law relating to genocide
since 1948, which testifies to a “will” in the international community “to
see full effectiveness given to the . . . Convention” and which is reflected
in Article 120 of the Statute of the International Criminal Court, which
prohibits reservations, and in the recognition of the jus cogens nature of
the prohibition of genocide established by recent doctrine and jurispru-
dence.
   59. The DRC argues finally that, even if the Court were to reject its
argument based on the peremptory character of the norms contained in
the Genocide Convention, it cannot permit Rwanda to behave in a con-
tradictory fashion, that is to say, to call on the United Nations Security
Council to set up an international criminal tribunal to try the authors of
the genocide committed against the Rwandan people, while at the same
time refusing to allow those guilty of genocide to be tried when they are
Rwandan nationals or the victims of the genocide are not Rwandans.

  60. With respect to its reservation to Article IX of the Genocide Con-
vention, Rwanda first observes that, although, as the DRC contends, the
norms codified in the substantive provisions of the Genocide Convention
have the status of jus cogens and create rights and obligations erga
omnes, that does not in itself suffice to “confer jurisdiction on the Court
with respect to a dispute concerning the application of those rights and
obligations”, as, according to Rwanda, the Court had held in the case
concerning East Timor and in its Order of 10 July 2002 in the present
case.
  61. Secondly, Rwanda argues that its reservation to Article IX is not
incompatible with the object and purpose of the Genocide Convention,
inasmuch as the reservation relates not “to the substantive obligations of
the parties to the Convention but to a procedural provision”. It claims in
this connection that 14 other States maintain similar reservations, and
that the majority of the 133 States parties to the Convention have raised
no objection to those reservations ; the DRC itself did not object to
Rwanda’s reservation prior to the hearings of June 2002. Rwanda further

                                                                         28

                      ARMED ACTIVITIES (JUDGMENT)                       31

observes that, at the provisional measures stage in the cases concerning
Legality of Use of Force, the Court, in light of the reservations to
Article IX of the Genocide Convention by Spain and the United States —
which are in similar terms to Rwanda’s reservation — decided to remove
the cases concerning those two States from its List, on the ground of its
manifest lack of jurisdiction ; it necessarily followed that the Court con-
sidered that there was no room for doubt as to the validity and effect of
those reservations. The fact that the Court, in its Order of 10 July 2002,
did not find that there was a manifest lack of jurisdiction did not in any
way support the DRC’s argument, inasmuch as this conclusion was
addressed to the totality of the DRC’s alleged bases of jurisdiction ; it
could be explained only by reference to the other treaties invoked by the
DRC, and not to the Genocide Convention.
   62. Rwanda observes thirdly that the fact that Article 120 of the
Statute of the International Criminal Court — to which Rwanda is not
a party and which it has not even signed — prohibits reservations has no
bearing whatever on this issue. Thus, according to Rwanda, the fact that
the States which drew up the Statute of the International Criminal Court
“chose to prohibit all reservations to that treaty in no way affects the
right of States to make reservations to other treaties which, like the
Genocide Convention, do not contain such a prohibition”.

  63. Rwanda contends fourthly that its request to the United Nations
Security Council to establish an international criminal tribunal to try
individuals accused of participation in the genocide perpetrated on
Rwandan territory in 1994 is “an entirely separate matter from the juris-
diction of [the] Court to hear disputes between States”. There can be
no question, according to Rwanda, of “an otherwise valid reservation
to Article IX being rendered ‘inoperative’, because the reserving State
supported the creation by the Security Council of a criminal tribunal
with jurisdiction over individuals”.

                                    *

   64. The Court will begin by reaffirming that “the principles underlying
the [Genocide] Convention are principles which are recognized by civi-
lized nations as binding on States, even without any conventional obli-
gation” and that a consequence of that conception is “the universal
character both of the condemnation of genocide and of the co-opera-
tion required ‘in order to liberate mankind from such an odious scourge’
(Preamble to the Convention)” (Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23). It follows that “the rights and obligations
enshrined by the Convention are rights and obligations erga omnes”
(Application of the Convention on the Prevention and Punishment of the

                                                                        29

                       ARMED ACTIVITIES (JUDGMENT)                         32

Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 31).
   The Court observes, however, as it has already had occasion to empha-
size, that “the erga omnes character of a norm and the rule of consent
to jurisdiction are two different things” (East Timor (Portugal v. Aus-
tralia), Judgment, I.C.J. Reports 1995, p. 102, para. 29), and that the
mere fact that rights and obligations erga omnes may be at issue in a
dispute would not give the Court jurisdiction to entertain that dispute.
   The same applies to the relationship between peremptory norms of
general international law (jus cogens) and the establishment of the
Court’s jurisdiction : the fact that a dispute relates to compliance with a
norm having such a character, which is assuredly the case with regard to
the prohibition of genocide, cannot of itself provide a basis for the juris-
diction of the Court to entertain that dispute. Under the Court’s Statute
that jurisdiction is always based on the consent of the parties.
   65. As it recalled in its Order of 10 July 2002, the Court has jurisdic-
tion in respect of States only to the extent that they have consented
thereto (Armed Activities on the Territory of the Congo (New Applica-
tion : 2002) (Democratic Republic of the Congo v. Rwanda), Provisional
Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 241, para. 57).
When a compromissory clause in a treaty provides for the Court’s juris-
diction, that jurisdiction exists only in respect of the parties to the treaty
who are bound by that clause and within the limits set out therein (ibid.,
p. 245, para. 71).
   66. The Court notes, however, that it has already found that reserva-
tions are not prohibited under the Genocide Convention (Advisory
Opinion in the case concerning Reservations to the Convention on the Pre-
vention and Punishment of the Crime of Genocide, I.C.J. Reports 1951,
pp. 22 et seq.). This legal situation is not altered by the fact that the
Statute of the International Criminal Court, in its Article 120, does not
permit reservations to that Statute, including provisions relating to the
jurisdiction of the International Criminal Court on the crime of geno-
cide. Thus, in the view of the Court, a reservation under the Genocide
Convention would be permissible to the extent that such reservation
is not incompatible with the object and purpose of the Convention.
   67. Rwanda’s reservation to Article IX of the Genocide Convention
bears on the jurisdiction of the Court, and does not affect substantive
obligations relating to acts of genocide themselves under that Conven-
tion. In the circumstances of the present case, the Court cannot conclude
that the reservation of Rwanda in question, which is meant to exclude a
particular method of settling a dispute relating to the interpretation,
application or fulfilment of the Convention, is to be regarded as being
incompatible with the object and purpose of the Convention.
   68. In fact, the Court has already had occasion in the past to give
effect to such reservations to Article IX of the Convention (see Legality
of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of
2 June 1999, I.C.J. Reports 1999 (II), p. 772, paras. 32-33 ; Legality of

                                                                           30

                      ARMED ACTIVITIES (JUDGMENT)                        33

Use of Force (Yugoslavia v. United States of America), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 924,
paras. 24-25). The Court further notes that, as a matter of the law of
treaties, when Rwanda acceded to the Genocide Convention and made
the reservation in question, the DRC made no objection to it.
   69. In so far as the DRC contended further that Rwanda’s reservation
is in conflict with a peremptory norm of general international law, it suf-
fices for the Court to note that no such norm presently exists requiring a
State to consent to the jurisdiction of the Court in order to settle a dis-
pute relating to the Genocide Convention. Rwanda’s reservation cannot
therefore, on such grounds, be regarded as lacking legal effect.

  70. The Court concludes from the foregoing that, having regard to
Rwanda’s reservation to Article IX of the Genocide Convention, this
Article cannot constitute the basis for the jurisdiction of the Court in the
present case.

                                  * * *
  71. The DRC also seeks to found the jurisdiction of the Court on
Article 22 of the Convention on Racial Discrimination, which states :

       “Any dispute between two or more States Parties with respect to
    the interpretation or application of this Convention, which is not
    settled by negotiation or by the procedures expressly provided for in
    this Convention, shall, at the request of any of the parties to the dis-
    pute, be referred to the International Court of Justice for decision,
    unless the disputants agree to another mode of settlement.”

In its Application the DRC alleges that Rwanda has committed numer-
ous acts of racial discrimination within the meaning of Article 1 of that
Convention, which provides inter alia :
    “the term ‘racial discrimination’ shall mean any distinction, exclu-
    sion, restriction or preference based on race, colour, descent, or
    national or ethnic origin which has the purpose or effect of nullify-
    ing or impairing the recognition, enjoyment or exercise, on an equal
    footing, of human rights and fundamental freedoms in the political,
    economic, social, cultural or any other field of public life”.

  72. Rwanda claims that the jurisdiction of the Court under the Con-
vention on Racial Discrimination is precluded by its reservation to the
entire Article 22. It contends that, as the Court observed in its Order of
10 July 2002, the said reservation did not attract objections from two-
thirds of the States parties and should therefore be regarded as com-
patible with the object and purpose of the Convention pursuant to

                                                                         31

                      ARMED ACTIVITIES (JUDGMENT)                        34

Article 20, paragraph 2, thereof. Rwanda also points out that the DRC
itself did not raise any objection to that reservation or to any similar
reservations made by other States.
   73. For its part, the DRC argues that Rwanda’s reservation to
Article 22 of the Convention on Racial Discrimination is unacceptable
on the ground of its incompatibility with the object and purpose of
the treaty, “because it would amount to granting Rwanda the right to
commit acts prohibited by the Convention with complete impunity”. The
DRC further contended at the hearings that the prohibition on racial
discrimination was a peremptory norm and that, “in keeping with the
spirit of Article 53 of the Vienna Convention” on the Law of Treaties,
Rwanda’s reservation to Article 22 of the Convention on Racial Discri-
mination should “be considered as contrary to jus cogens and without
effect”. Hence the fact that the DRC had not objected to that reserva-
tion was of no consequence in the present proceedings. In addition,
the DRC maintained, as it did in respect of the reservation to Article IX
of the Genocide Convention (see paragraph 30 above), that the reserva-
tion entered by Rwanda to Article 22 of the Convention on Racial Dis-
crimination has “lapsed or fallen into desuetude as a result of the
undertaking, enshrined in the Rwandan Fundamental Law, to ‘with-
draw all reservations entered by Rwanda when it adhered to . . . inter-
national instruments’ ” relating to human rights.

                                     *
   74. The Court notes that both the DRC and Rwanda are parties to the
Convention on Racial Discrimination, the DRC having acceded thereto
on 21 April 1976 and Rwanda on 16 April 1975. Rwanda’s instrument
of accession to the Convention, as deposited with the United Nations
Secretary-General, does however include a reservation reading as
follows : “The Rwandese Republic does not consider itself as bound by
article 22 of the Convention.”
   75. The Court will first address the DRC’s argument that the reserva-
tion has “lapsed or fallen into desuetude as a result of the undertaking,
enshrined in the Rwandan Fundamental Law, to ‘withdraw all reserva-
tions entered by Rwanda when it adhered to . . . international instru-
ments’ ” relating to human rights. Without prejudice to the applicability
mutatis mutandis to the Convention on Racial Discrimination of the
Court’s reasoning and conclusions in respect of the DRC’s claim that
Rwanda withdrew its reservation to the Genocide Convention (see para-
graphs 38-55 above), the Court observes that the procedures for with-
drawing a reservation to the Convention on Racial Discrimination are
expressly provided for in Article 20, paragraph 3, of that Convention,
which states : “Reservations may be withdrawn at any time by notifica-
tion to this effect addressed to the Secretary-General. Such notification
shall take effect on the date on which it is received.” However, there is no
evidence before the Court of any notification by Rwanda to the United

                                                                         32

                      ARMED ACTIVITIES (JUDGMENT)                         35

Nations Secretary-General of its intention to withdraw its reservation
to Article 22 of the Convention on Racial Discrimination. The Court
accordingly concludes that the respondent State has maintained that
reservation.
   76. The Court must therefore now consider the DRC’s argument that
the reservation is invalid.
   77. The Court notes that the Convention on Racial Discrimination
prohibits reservations incompatible with its object and purpose. The
Court observes in this connection that, under Article 20, paragraph 2, of
the Convention, “[a] reservation shall be considered incompatible . . . if at
least two-thirds of the States Parties to [the] Convention object to it”.
The Court notes, however, that such has not been the case as regards
Rwanda’s reservation in respect of the Court’s jurisdiction. Without
prejudice to the applicability mutatis mutandis to Rwanda’s reserva-
tion to Article 22 of the Convention on Racial Discrimination of the
Court’s reasoning and conclusions in respect of Rwanda’s reservation to
Article IX of the Genocide Convention (see paragraphs 66-68 above),
the Court is of the view that Rwanda’s reservation to Article 22 can-
not therefore be regarded as incompatible with that Convention’s object
and purpose. The Court observes, moreover, that the DRC itself raised
no objection to the reservation when it acceded to the Convention.

   78. In relation to the DRC’s argument that the reservation in question
is without legal effect because, on the one hand, the prohibition on racial
discrimination is a peremptory norm of general international law and, on
the other, such a reservation is in conflict with a peremptory norm, the
Court refers to its reasoning when dismissing the DRC’s similar argu-
ment in regard to Rwanda’s reservation to Article IX of the Genocide
Convention (see paragraphs 64-69 above) : the fact that a dispute con-
cerns non-compliance with a peremptory norm of general international
law cannot suffice to found the Court’s jurisdiction to entertain such a
dispute, and there exists no peremptory norm requiring States to consent
to such jurisdiction in order to settle disputes relating to the Convention
on Racial Discrimination.

   79. The Court concludes from the foregoing that, having regard to
Rwanda’s reservation to Article 22 of the Convention on Racial Dis-
crimination, this Article cannot constitute the basis for the jurisdiction of
the Court in the present case.

                                   * * *
  80. The DRC further claims to found the jurisdiction of the Court on
Article 29, paragraph 1, of the Convention on Discrimination against
Women, which provides :
       “Any dispute between two or more States Parties concerning the
    interpretation or application of the present Convention which is not

                                                                          33

                      ARMED ACTIVITIES (JUDGMENT)                         36

    settled by negotiation shall, at the request of one of them, be sub-
    mitted to arbitration. If within six months from the date of the
    request for arbitration the parties are unable to agree on the organi-
    zation of the arbitration, any one of those parties may refer the dis-
    pute to the International Court of Justice by request in conformity
    with the Statute of the Court.”
The DRC maintains that Rwanda has violated its obligations under
Article 1 of the Convention, which reads as follows :
      “For the purposes of the present Convention, the term ‘discrimi-
    nation against women’ shall mean any distinction, exclusion or
    restriction made on the basis of sex which has the effect or purpose
    of impairing or nullifying the recognition, enjoyment or exercise by
    women, irrespective of their marital status, on a basis of equality of
    men and women, of human rights and fundamental freedoms in the
    political, economic, social, cultural, civil or any other field.”

   81. Rwanda contends that the Court cannot assume jurisdiction on
the basis of Article 29 of the Convention on Discrimination against
Women, on the ground that in the present case the preconditions required
by that provision for referral to the Court have not been fulfilled. Those
preconditions are cumulative according to Rwanda and are as follows :
there must be a dispute between the parties concerning the interpretation
or application of the Convention ; it must have proved impossible to
settle that dispute by negotiation ; one of the parties must have requested
that the dispute be submitted to arbitration, but the parties have been
unable to agree on the organization thereof ; and, lastly, six months must
have elapsed between the request for arbitration and seisin of the Court.
   Rwanda further argues that the objections which it has raised in these
proceedings bear on the jurisdiction of the Court and not on the admis-
sibility of the Application, as the DRC contends. It states in this connec-
tion that the Court’s jurisdiction is based on the consent of the parties
and that they are free to attach substantive or procedural conditions to
that consent ; as those conditions circumscribe the recognition of the
Court’s jurisdiction, a contention that they have not been complied with
is not an objection as to admissibility but indeed an objection to the juris-
diction of the Court, as, according to Rwanda, the Court made clear in
the case concerning the Aerial Incident at Lockerbie.
   82. In respect of the first of the four conditions laid down by
Article 29, that is to say the existence of a dispute concerning the Conven-
tion, Rwanda asserts that “there has been no claim by the Congo, prior
to its filing of the Application[,]” and that “[a]t no time did the Congo
advance any claim that Rwanda was in breach of the Convention or
suggest that there was a dispute regarding the interpretation of any
provision of the Convention”. It argues in this connection that the
practice of human rights tribunals, cited by the DRC, under which an

                                                                          34

                      ARMED ACTIVITIES (JUDGMENT)                         37

individual is not required first to identify the precise provision of the
treaty relied on, does not relieve the DRC of the duty to specify the
nature of the dispute. Rwanda observes that the present proceedings do
not involve a claim brought by an individual against a State, but are
between two equal States and that in this phase of the case it is no
longer just a matter of determining whether the Court has prima facie
jurisdiction to indicate provisional measures, but of ascertaining whether
the preconditions for the seisin of the Court have been satisfied.
   83. In respect of the condition of prior negotiation, Rwanda maintains
that “the Congo has at no time even raised the question of this Conven-
tion with Rwanda in any of the numerous meetings which have taken
place between representatives of the two governments over the last few
years”, the series of meetings between the two States referred to by the
DRC having involved general negotiations to settle the armed conflict,
not a dispute concerning the said Convention. The only attempt to nego-
tiate which would be relevant to satisfying the conditions of Article 29
would be one concerning a specific dispute over the interpretation or
application of the Convention on Discrimination against Women.
Rwanda points out in particular that the Court, in its Order of 10 July
2002, decided that the DRC had not shown that its attempts to enter into
negotiations or undertake arbitration proceedings concerned the applica-
tion of the Convention. In response to the DRC’s argument that the war
between the two Parties rendered negotiations impossible over a specific
dispute under the Convention, Rwanda has cited a letter of 14 January
2002 from the Minister of Telecommunications of the DRC to the
Secretary-General of the International Telecommunication Union con-
cerning a question of telephone prefixes ; in Rwanda’s view, this letter
shows that, if the DRC was able in the middle of an armed conflict to
raise a technical issue of this kind, it would certainly have been capable of
entering into negotiations dealing with a dispute over specific provisions
of the Convention.

   84. Lastly, concerning the arbitration requirement, Rwanda contends
that there has been no attempt by the DRC to take any of the steps
required to organize arbitration proceedings, despite the holding of “regu-
lar and frequent meetings between representatives of the two countries at
all levels as part of the Lusaka peace process” ; according to Rwanda, the
DRC has not offered any evidence in this connection. Rwanda adds that
the lack of diplomatic relations between the Parties at the time is beside
the point ; it notes moreover that in its 2002 Order the Court considered
this argument to be insufficient.

   85. For its part, the DRC maintains, first, that “the purported objec-
tion to jurisdiction on grounds of failure to satisfy the preconditions”
provided for in Article 29 of the Convention in reality constitutes an
objection to the admissibility of the Application.

                                                                          35

                     ARMED ACTIVITIES (JUDGMENT)                       38

   Secondly, the DRC denies that the compromissory clause in question
contains four preconditions. According to the DRC, the clause contains
only two conditions, namely that the dispute must involve the application
or interpretation of the Convention and that it must have proved impos-
sible to organize arbitration proceedings, it being understood that such a
failure “will not become apparent until six months have elapsed from the
request for arbitration”.
   86. Concerning the fulfilment of those conditions, the DRC asserts
that international law does not prescribe any set form for the filing of
complaints by States ; negotiation may be bilateral, but it may also be
conducted within the framework of an international organization, as the
Court stated in the South West Africa cases in 1962. The DRC points out
that it lodged numerous claims against Rwanda in the form of protests
made to the authorities of that State through the intermediary of inter-
national institutions or organizations and through individual contacts
between the respective authorities of the two States. The DRC further
asserts that the protests made through international organizations “were
brought to the attention of Rwanda by the United Nations bodies” and
that, “since the private meetings between the Congolese and Rwandan
Presidents took place mainly under the auspices either of other Heads of
States or of international institutions, the official summit proceedings
relating thereto are in the public domain”. As instances of negotiations
conducted within the framework of international organizations, the DRC
cites the complaint referred on 24 February 1999 to the African Commis-
sion on Human and Peoples’ Rights, a body which, according to the
DRC, plays “a veritable role of arbitrator” between African States in
respect of violations of human rights guaranteed not only by the African
Charter on Human and Peoples’ Rights but also by other international
instruments ; in the view of the DRC, the Commission could have ruled
on violations of conventions such as the Convention on Discrimination
against Women if Rwanda had not obstructed the proceedings by vari-
ous delaying tactics. The DRC also refers to its complaints to the United
Nations Security Council following various human rights violations com-
mitted by Rwanda and to the adoption by that body of resolutions,
including resolutions 1304 of 16 June 2000 and 1417 of 14 June 2002, in
which, according to the DRC, the Council “progressed from mere requests
to actual demands”. The DRC contends that there were therefore indeed
attempts on its part to negotiate, but no headway could ever be made
owing to Rwanda’s bad faith ; the DRC further contends that “the
impossibility of opening or progressing in negotiations with Rwanda”
precluded contemplating “the possibility of moving from negotiations to
arbitration”.

                                    *
  87. The Court notes that both the DRC and Rwanda are parties to the

                                                                       36

                       ARMED ACTIVITIES (JUDGMENT)                         39

Convention on Discrimination against Women, the DRC having ratified
it on 17 October 1986 and Rwanda on 2 March 1981. It also notes that
Article 29 of this Convention gives the Court jurisdiction in respect of
any dispute between States parties concerning its interpretation or appli-
cation, on condition that : it has not been possible to settle the dispute by
negotiation ; that, following the failure of negotiations, the dispute has, at
the request of one such State, been submitted to arbitration ; and that, if
the parties have been unable to agree on the organization of the arbitra-
tion, a period of six months has elapsed from the date of the request for
arbitration.
   In the view of the Court, it is apparent from the language of Article 29
of the Convention that these conditions are cumulative. The Court must
therefore consider whether the preconditions on its seisin set out in the
said Article 29 have been satisfied in this case.
   88. The Court will however first address the DRC’s argument that the
objection based on non-fulfilment of the preconditions set out in the
compromissory clauses, and in particular in Article 29 of the Convention,
is an objection to the admissibility of its Application rather than to the
jurisdiction of the Court. The Court recalls in this regard that its jurisdic-
tion is based on the consent of the parties and is confined to the extent
accepted by them (see paragraph 65 above). When that consent is
expressed in a compromissory clause in an international agreement, any
conditions to which such consent is subject must be regarded as con-
stituting the limits thereon. The Court accordingly considers that the
examination of such conditions relates to its jurisdiction and not to the
admissibility of the application (see Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, pp. 11-15 ; Interpreta-
tion of the Statute of the Memel Territory, Merits, Judgment, 1932,
P.C.I.J., Series A/B, No. 49, pp. 327-328 ; Electricity Company of Sofia
and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 78-80 ;
South West Africa (Ethiopia v. South Africa ; Liberia v. South Africa),
Preliminary Objections, Judgment, I.C.J. Reports 1962, pp. 344-346 ;
Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 1984, pp. 427-429, paras. 81-83 ; Border and Trans-
border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admis-
sibility, Judgment, I.C.J. Reports 1988, pp. 88-90, paras. 42-48 ; Questions
of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya
v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 16, paras. 16-19 ; p. 24, paras. 39-40 ; Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I.C.J. Reports 1998,
pp. 121-122, paras. 15-19 ; p. 129, paras. 38-39). It follows that in the
present case the conditions for seisin of the Court set out in Article 29 of
the Convention on Discrimination against Women must be examined in

                                                                           37

                      ARMED ACTIVITIES (JUDGMENT)                        40

the context of the issue of the Court’s jurisdiction. This conclusion
applies mutatis mutandis to all of the other compromissory clauses
invoked by the DRC.
   89. The Court will now examine the conditions laid down by
Article 29 of the Convention on Discrimination against Women. It will
begin by considering whether in this case there exists a dispute between
the Parties “concerning the interpretation or application of [that] Con-
vention” which could not have been settled by negotiation.
   90. The Court recalls in this regard that, as long ago as 1924, the Per-
manent Court of International Justice stated that “a dispute is a disagree-
ment on a point of law or fact, a conflict of legal views or interests”
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11).
   For its part, the present Court has had occasion a number of times to
state the following :
       “In order to establish the existence of a dispute, ‘it must be shown
    that the claim of one party is positively opposed by the other’ (South
    West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962,
    p. 328) ; and further, ‘Whether there exists an international dispute is
    a matter for objective determination’ (Interpretation of Peace Trea-
    ties with Bulgaria, Hungary and Romania, First Phase, Advisory
    Opinion, I.C.J. Reports 1950, p. 74).” (East Timor (Portugal v. Aus-
    tralia), Judgment, I.C.J. Reports 1995, p. 100, para. 22 ; Questions
    of Interpretation and Application of the 1971 Montreal Convention
    arising from the Aerial Incident at Lockerbie (Libyan Arab Jama-
    hiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
    Reports 1998, p. 17, para. 22 ; Questions of Interpretation and Appli-
    cation of the 1971 Montreal Convention arising from the Aerial Inci-
    dent at Lockerbie (Libyan Arab Jamahiriya v. United States of
    America), Preliminary Objections, Judgment, I.C.J. Reports 1998,
    pp. 122-123, para. 21 ; Certain Property (Liechtenstein v. Germany),
    Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 18,
    para. 24.)
   91. The Court notes that in the present case the DRC made numerous
protests against Rwanda’s actions in alleged violation of international
human rights law, both at the bilateral level through direct contact with
Rwanda and at the multilateral level within the framework of interna-
tional institutions such as the United Nations Security Council and
the Commission on Human and Peoples’ Rights of the Organization of
African Unity. In its Counter-Memorial and at the hearings the DRC
presented these protests as proof that “the DRC has satisfied the pre-
conditions to the seisin of the Court in the compromissory clauses
invoked”. Whatever may be the legal characterization of such protests
as regards the requirement of the existence of a dispute between the
DRC and Rwanda for purposes of Article 29 of the Convention,
that Article requires also that any such dispute be the subject of nego-

                                                                         38

                      ARMED ACTIVITIES (JUDGMENT)                         41

tiations. The evidence has not satisfied the Court that the DRC in fact
sought to commence negotiations in respect of the interpretation or
application of the Convention.

   92. The Court further notes that the DRC has also failed to prove
any attempts on its part to initiate arbitration proceedings with
Rwanda under Article 29 of the Convention. The Court cannot in this
regard accept the DRC’s argument that the impossibility of opening or
advancing in negotiations with Rwanda prevented it from contemplating
having recourse to arbitration ; since this is a condition formally set out
in Article 29 of the Convention on Discrimination against Women,
the lack of agreement between the parties as to the organization of an
arbitration cannot be presumed. The existence of such disagreement can
follow only from a proposal for arbitration by the applicant, to which the
respondent has made no answer or which it has expressed its intention
not to accept (see Questions of Interpretation and Application of the
1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 17, para. 21 ; Questions of Interpreta-
tion and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States
of America), Preliminary Objections, Judgment, I.C.J. Reports 1998,
p. 122, para. 20). In the present case, the Court has found nothing in
the file which would enable it to conclude that the DRC made a pro-
posal to Rwanda that arbitration proceedings should be organized, and
that the latter failed to respond thereto.

  93. It follows from the foregoing that Article 29, paragraph 1, of the
Convention on Discrimination against Women cannot serve to found the
jurisdiction of the Court in the present case.

                                   * * *
  94. The DRC further seeks to found the jurisdiction of the Court on
Article 75 of the WHO Constitution, which provides :
       “Any question or dispute concerning the interpretation or applica-
    tion of this Constitution which is not settled by negotiation or by
    the Health Assembly shall be referred to the International Court of
    Justice in conformity with the Statute of the Court, unless the
    parties concerned agree on another mode of settlement.”

The DRC contends that Rwanda has breached the provisions of
Articles 1 and 2 of the Constitution, which respectively concern the
Organization’s objectives and functions.
  95. Rwanda maintains that Article 75 of the WHO Constitution can-
not found the Court’s jurisdiction in this case. In this regard, it begins by

                                                                          39

                      ARMED ACTIVITIES (JUDGMENT)                         42

arguing that the WHO Constitution is inapplicable for two reasons.
First, it claims that the DRC has failed to specify which particular obli-
gation laid down by that instrument has allegedly been breached by
Rwanda, the only provision to which it ever made reference having been
Article 2 ; that Article does not impose any direct obligation on the Mem-
ber States themselves, as the Court moreover pointed out in paragraph 82
of its Order of 10 July 2002. Secondly, Rwanda contends that the DRC’s
allegations “do not appear to give rise to a dispute concerning the inter-
pretation or application of the Constitution”, as “[i]t is clear from the
Application that the Congo considers this dispute to be founded on the
alleged acts of aggression of Rwanda”.
   96. Rwanda further argues that, in addition to requiring the existence
of a dispute concerning the interpretation or application of the Constitu-
tion, Article 75 imposes two further preconditions on the seisin of the
Court : namely, settlement of the dispute by negotiation must have proved
impossible and settlement by the World Health Assembly must also have
proved impossible. According to Rwanda, the two requirements of nego-
tiation and recourse to the World Health Assembly are cumulative not
alternative, as claimed by the DRC, and they have not been satisfied in
the present case. Rwanda adds that, even if the two requirements were
not cumulative, the DRC would still be unable to rely on Article 75,
because it has not proved that it has satisfied the negotiation require-
ment. It is not sufficient, in Rwanda’s view, for the DRC to argue that
Rwanda’s refusal to participate rendered negotiation impossible ; Rwanda
considers that the DRC must show “that it . . . attempted, in good faith,
to negotiate a solution to this particular dispute”.

   97. In reply, the DRC disputes Rwanda’s assertion that the obliga-
tions set out in the WHO Constitution are binding only on the Organiza-
tion itself ; in the DRC’s view, it would be difficult “to accept that Mem-
ber States, including Rwanda, are not under an obligation to contribute
to the accomplishment by the World Health Organization of [its] func-
tions” or, at the very least, to refrain from hindering the fulfilment of its
objective and those functions, as they are defined in Articles 1 and 2 of
the Constitution. The DRC asserts that the principle that Member States
must fulfil in good faith the obligations they have assumed is “a general
principle the basis of which is to be found in international customary law
and which is confirmed by other constituent instruments of international
organizations” ; it specifically cites the example of Article 2, paragraph 2,
of the United Nations Charter. The DRC alleges that Rwanda, in resort-
ing to the spreading of AIDS as an instrument of war and in engaging in
large-scale killings on Congolese territory, has not “in good faith carried
out the Constitution of the WHO, which aims at fostering the highest
possible level of health for all peoples of the world” ; the DRC further
claims to have made an ample showing that a number of international
organizations, both governmental and other, “have published detailed
reports on the serious deterioration of the health situation in the DRC as

                                                                          40

                     ARMED ACTIVITIES (JUDGMENT)                      43

a consequence of the war of aggression” waged by Rwanda.

   98. The DRC further contends that Article 75 of the WHO Constitu-
tion leaves it open to the parties to choose between negotiations and
recourse to the World Health Assembly procedure to settle their dis-
putes ; according to the DRC, these two conditions are not cumulative, as
is shown by “the use of the word ‘or’”. Members of the World Health
Organization are accordingly under no obligation to look first to one and
then the other of these modes of settlement before bringing proceedings
before the Court. In the present case, the DRC opted for negotiations,
but these failed “through the fault of Rwanda”.

                                   *
  99. The Court observes that the DRC has been a party to the WHO
Constitution since 24 February 1961 and Rwanda since 7 November 1962
and that both are thus members of that Organization. The Court further
notes that Article 75 of the WHO Constitution provides for the Court’s
jurisdiction, under the conditions laid down therein, over “any question
or dispute concerning the interpretation or application” of that instru-
ment. The Article requires that a question or dispute must specifically
concern the interpretation or application of the Constitution. In the
opinion of the Court, the DRC has not shown that there was a question
concerning the interpretation or application of the WHO Constitution on
which itself and Rwanda had opposing views, or that it had a dispute
with that State in regard to this matter.

  100. The Court further notes that, even if the DRC had demonstrated
the existence of a question or dispute falling within the scope of
Article 75 of the WHO Constitution, it has in any event not proved
that the other preconditions for seisin of the Court established by that
provision have been satisfied, namely that it attempted to settle the
question or dispute by negotiation with Rwanda or that the World
Health Assembly had been unable to settle it.

  101. The Court concludes from the foregoing that Article 75 of the
WHO Constitution cannot serve to found its jurisdiction in the present
case.

                                 * * *
  102. The DRC further seeks to found the jurisdiction of the Court on
Article XIV, paragraph 2, of the Unesco Constitution, which reads as
follows :
      “Any question or dispute concerning the interpretation of this
    Constitution shall be referred for determination to the International

                                                                      41

                      ARMED ACTIVITIES (JUDGMENT)                       44

    Court of Justice or to an arbitral tribunal, as the General Con-
    ference may determine under its rules of procedure.”
In its Application the DRC invokes Article I of the Constitution, which
concerns the Organization’s purposes and functions, and maintains that
“[o]wing to the war, the Democratic Republic of the Congo today is
unable to fulfil its missions within Unesco . . .”.
   103. Rwanda argues that the Court is precluded for various reasons
from finding that it has jurisdiction on the basis of Article XIV of the
Unesco Constitution. It first points out that this provision limits the
Court’s jurisdiction to disputes concerning the “interpretation” of the
Constitution and that in this case there is no hint of any dispute between
the Parties regarding interpretation of the Constitution. It contends that
the DRC’s allegation that it is unable to fulfil its missions within Unesco
owing to the war “[a]t its highest . . . would only amount to a dispute
concerning the application of the Constitution” of that Organization.
Rwanda adds that the Court itself, in paragraph 85 of its Order of
10 July 2002, stated that the interpretation of the Unesco Constitution
did not appear to be the object of the DRC’s Application ; Rwanda notes
that Unesco, after being invited by the Court to submit written observa-
tions on the Application, responded that it concurred entirely with the
view expressed in that paragraph of the Court’s Order. Rwanda points
out that “[n]o new arguments or evidence have been presented by the
Congo since that Order to suggest that its allegations do indeed concern
the interpretation of the Constitution”.

   104. Rwanda next argues that, even if Article XIV of the Unesco Con-
stitution did not confine the Court’s jurisdiction solely to matters of
interpretation of the instrument, the DRC has failed to show the rele-
vance of the Constitution to the present dispute. According to Rwanda,
“the essence of the Congo’s case is the alleged acts of aggression” com-
mitted by Rwanda and “the Congo has failed to make clear which . . .
obligation under the Unesco Constitution has been breached”. It notes in
this connection that Article I of the Constitution, cited by the DRC in its
Application, “simply outlines the purposes and functions of the organiza-
tion [and] does not impose any direct obligations on the Member States”.

  105. Lastly, Rwanda argues that the procedures laid down in
Article XIV of the Unesco Constitution and in the Rules of Procedure
of the Unesco General Conference, to which that Article refers, were not
followed. According to Rwanda, Article XIV does not empower States
unilaterally to refer a dispute to the Court. It notes that Article 38 of
the Rules of Procedure

    “provides for questions concerning the interpretation of the Con-
    stitution to be referred to the Legal Committee [of the General

                                                                        42

                      ARMED ACTIVITIES (JUDGMENT)                         45

    Conference, which] may then either ‘decide by a simple majority to
    recommend to the General Conference that any question concerning
    the interpretation of the Constitution be referred to the Interna-
    tional Court of Justice’ . . . or . . . may : ‘In cases where the Organi-
    zation is party to a dispute . . . decide by a simple majority, to
    recommend to the General Conference that the case be submitted
    for final decision to an arbitral tribunal, arrangements for which
    shall be made by the Executive Board.’ ”
Rwanda observes in this regard that “[t]he Congo has at no time
suggested that these procedures have been adhered to”.
  106. The DRC argues in response that Article XIV of the Unesco
Constitution leaves it open to the parties, in settling their disputes, to
choose between negotiation and referral to the General Conference and
imposes no obligation to try each of those modes of settlement in turn ; in
the present case, the DRC opted for negotiations, which “failed through
the fault of Rwanda”. At the hearings, the DRC added : “Rwanda’s
assertion that Unesco concurred with the opinion of the Court raises a
problem”. It maintained that, if the opinion of the Court with which
Unesco concurred was

    “[u]ltimately, . . . the decision that the Court’s lack of jurisdiction
    was not manifest, then Rwanda is unfounded in maintaining that the
    compromissory clause in the Unesco Constitution cannot serve as a
    basis for the Court’s jurisdiction”.

                                     *
   107. The Court notes that both the DRC and Rwanda are parties to
the Unesco Constitution and have been since 25 November 1960 in the
case of the DRC and 7 November 1962 in the case of Rwanda, and that
both are thus members of that Organization. The Court further observes
that Article XIV, paragraph 2, of the Unesco Constitution provides
for the referral, under the conditions established therein, of questions
or disputes concerning the Constitution, but only in respect of its
interpretation. The Court considers that such is not the object of the
DRC’s Application. It finds that the DRC has in this case invoked
the Unesco Constitution and Article I thereof for the sole purpose
of maintaining that “[o]wing to the war”, it “today is unable to fulfil its
missions within Unesco”. The Court is of the opinion that this is not a
question or dispute concerning the interpretation of the Unesco Consti-
tution. Thus the DRC’s Application does not fall within the scope of
Article XIV of the Constitution.
   108. The Court further considers that, even if the existence of a
question or dispute falling within the terms of the above provision
were established, the DRC has in any event failed to show that the
prior procedure for seisin of the Court pursuant to that provision and to

                                                                          43

                     ARMED ACTIVITIES (JUDGMENT)                       46

Article 38 of the Rules of Procedure of the Unesco General Conference
was followed.
   109. The Court concludes from the foregoing that Article XIV, para-
graph 2, of the Unesco Constitution cannot serve to found its jurisdiction
in the present case.

                                  * * *
  110. The DRC further claims to found the jurisdiction of the Court on
Article 14, paragraph 1, of the Montreal Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation, which provides as
follows :
       “Any dispute between two or more Contracting States concerning
    the interpretation or application of this Convention which cannot be
    settled through negotiation, shall, at the request of one of them, be
    submitted to arbitration. If within six months from the date of the
    request for arbitration the Parties are unable to agree on the organi-
    zation of the arbitration, any one of those Parties may refer the dis-
    pute to the International Court of Justice by request in conformity
    with the Statute of the Court.”
In its Application the DRC made the following submission inter alia :
    “by shooting down a Boeing 727 owned by Congo Airlines on
    [10] October 1998 in Kindu, thereby causing the death of 40
    civilians, Rwanda . . . violated . . . the Montreal Convention for the
    Suppression of Unlawful Acts against the Safety of Civil Aviation
    of 23 September 1971”.
   111. Rwanda asserts that Article 14, paragraph 1, of the Montreal
Convention lays down a series of requirements, each of which must be
met before that provision can confer jurisdiction upon the Court, namely :
there must be a dispute between the parties concerning the interpretation
or application of the Convention ; it must have proved impossible to
settle the dispute by negotiation ; one of the parties must have requested
that the dispute be submitted to arbitration and the parties must have
been unable to agree upon the organization of the arbitration ; and,
finally, six months must have elapsed from the date of the request for
arbitration.
   112. Rwanda first contends that the DRC has failed to establish
the existence of a dispute between the Parties falling within the scope of
Article 14 of the Montreal Convention. It argues that under this pro-
vision “it is not open to a Claimant, . . . incidentally and implicitly,
to put in issue the Montreal Convention in the course of proceedings
raising a wider dispute or set of allegations”. It asserts that this, how-
ever, is precisely what the DRC seeks to do in the present proceedings,
inasmuch as the DRC maintains that the dispute concerns “acts of
armed aggression” and has submitted a “Statement of Facts” revealing

                                                                       44

                      ARMED ACTIVITIES (JUDGMENT)                        47

no allegation which could fall within the scope of the Convention.
Rwanda concludes : “It is manifest that the vast majority of issues raised
in the Congolese Application have nothing whatever to do with the
Montreal Convention . . .” It notes in this regard that the DRC’s only
attempt to identify a dispute concerning the Montreal Convention is
confined to the allegation, “made not in the ‘Statement of Facts’ but in
the prayer for relief at the end of the Application”, concerning the
destruction of an aircraft belonging to Congo Airlines on 10 October
1998 above Kindu.

   On this point, Rwanda asserts that the DRC has “not adequately
defined the dispute said to exist between [the Parties] regarding the inter-
pretation or application of the Montreal Convention”. It contends that
the incident alleged to have occurred at Kindu was the subject of a com-
plaint submitted by the DRC to the International Civil Aviation Organi-
zation (hereinafter the “ICAO”) and considered by the ICAO Council,
but that the DRC failed to provide the Council with any clarification of
its allegations. In particular, according to Rwanda, the DRC alleged that
the aircraft had been shot down not by Rwanda but by Congolese rebel
forces and then made identical allegations against Uganda, without any
attempt to reconcile its allegations against those two States. Rwanda
further observes that the Declaration adopted by the ICAO Council on
10 March 1999 contains no reference to the incident, “let alone any
suggestion that there might have been any violation of the Montreal
Convention by Rwanda, or that there might be a dispute between the
Congo and Rwanda concerning the interpretation or application of the
Convention”. Rwanda accordingly concludes that, despite the opportu-
nity afforded the DRC by the ICAO proceedings, it “has not set out its
claim with sufficient particularity for Rwanda to be able to oppose it”.
   113. Rwanda next argues that, even if there existed a dispute between
the DRC and itself regarding the interpretation or application of the
Montreal Convention, the DRC would still have to prove that it has met
the procedural requirements set out in Article 14, paragraph 1, of the
Convention. Yet, according to Rwanda, the DRC has failed to show that
any such dispute could not be settled by negotiation ; it argues in this
connection that
    “[a]lthough the Congo has referred to the alleged impossibility of
    negotiating a peaceful settlement with Rwanda, the Congo has here
    confused the settlement of the armed conflict, the nub of the allega-
    tion it makes, with the settlement of the specific dispute which it
    asserts exists under the Montreal Convention”.
Rwanda also observes that the DRC never suggested referring the dis-
pute to arbitration and that it has thus failed to satisfy another essential
requirement imposed by Article 14, paragraph 1, of the Montreal Con-
vention.
  114. In response, the DRC contends first that “the purported objec-

                                                                         45

                      ARMED ACTIVITIES (JUDGMENT)                         48

tion to jurisdiction” on grounds of failure to satisfy the preconditions laid
down in Article 14 of the Montreal Convention in reality constitutes an
objection to the admissibility of the Application (see paragraphs 85 and
88 above).
   The DRC next asserts that only two preconditions are laid down by
that Article, namely : the dispute must concern the application or inter-
pretation of the Convention in question ; and it must have proved impos-
sible to organize an arbitration, it being understood that the failure of an
attempt to do so “will not become apparent until six months have elapsed
from the request for arbitration”.
   Finally, the DRC maintains that these two preconditions for the seisin
of the Court have been satisfied in the present case.
   115. As regards the existence of a dispute within the meaning of
Article 14 of the Montreal Convention, the DRC observes that Rwanda
itself has acknowledged that the only dispute in respect of which that
Convention might furnish a basis for the Court’s jurisdiction is the one
relating to the incident of 10 October 1998 involving the Congo Airlines
aircraft above Kindu.
   116. In respect of the requirement of negotiations, the DRC contends
that the Rwandan authorities adopted the “empty chair” policy whenever
the DRC offered to discuss an issue such as the application of the Mon-
treal Convention to the incident of 10 October 1998. It cites in particular
the Syrte (Libya) Summit, “devoted to the settlement of various disputes
between the Parties”, to which Rwanda had been invited but which it did
not attend, and the Blantyre (Malawi) Summit in 2002, in which Rwanda
did not take part either and where, according to the United Nations
Secretary-General, “no substantive issues were discussed” because of
Rwanda’s absence. At the hearings, the DRC further stated that a
Security Council Group of Experts described itself in its report of 25 Janu-
ary 2005 as “gravely concerned about the lack of co-operation received
from Rwanda on civil aviation matters”. The DRC also argued

    “that negotiation between two States has been initiated either once
    the dispute has been the subject of an exchange of views, or indeed
    where it has been raised in a specific forum to which both States are
    party (this was the case for the ICAO, the United Nations Security
    Council, and various multilateral or sub-regional conferences), where
    the Congo consistently evoked Rwanda’s violations of certain inter-
    national instruments”.
The DRC further contended that “the impossibility of opening or pro-
gressing in negotiations with Rwanda” precluded contemplating “the
possibility of moving from negotiations to arbitration”.

                                     *
  117. The Court notes that both the DRC and Rwanda are parties to

                                                                          46

                      ARMED ACTIVITIES (JUDGMENT)                         49

the Montreal Convention and have been since 6 July 1977 in the case of
the DRC and 3 November 1987 in the case of Rwanda, that both are
Members of the ICAO, and that the Montreal Convention was already in
force between them at the time when the Congo Airlines aircraft is stated
to have been destroyed above Kindu, on 10 October 1998, and when
the Application was filed, on 28 May 2002. The Court also notes that
Article 14, paragraph 1, of the Montreal Convention gives the Court juris-
diction in respect of any dispute between contracting States concerning
the interpretation or application of the Convention, on condition that : it
has not been possible to settle the dispute by negotiation ; that, following
the failure of negotiations, the dispute has, at the request of one such
State, been submitted to arbitration ; and that, if the parties have been
unable to agree on the organization of the arbitration, a period of six
months has elapsed from the date of the request for arbitration. In order
to determine whether it has jurisdiction under this provision, the Court
will therefore first have to ascertain whether there is a dispute between the
Parties relating to the interpretation or application of the Montreal
Convention which could not have been settled by negotiation.

   118. The Court observes in this regard that the DRC has not indicated
to it which are the specific provisions of the Montreal Convention which
could apply to its claims on the merits. In its Application the DRC con-
fined itself to invoking that Convention in connection with the destruc-
tion on 10 October 1998, shortly after take-off from Kindu Airport, of a
civil aircraft belonging to Congo Airlines. Even if it could be established
that the facts cited by the DRC might, if proved, fall within the terms of
the Convention and gave rise to a dispute between the Parties concerning
its interpretation or application, and even if it could be considered that
the discussions within the Council of the ICAO amounted to negotia-
tions, the Court finds that, in any event, the DRC has failed to show that
it satisfied the conditions required by Article 14, paragraph 1, of the
Montreal Convention concerning recourse to arbitration : in particular, it
has not shown that it made a proposal to Rwanda that arbitration pro-
ceedings should be organized, and that the latter failed to respond
thereto (cf. paragraph 92 above).

  119. The Court considers that Article 14, paragraph 1, of the
Montreal Convention cannot therefore serve to found its jurisdiction in
the present case.

                                   * * *
   120. To found the jurisdiction of the Court in the present case, the
DRC relies finally on Article 66 of the Vienna Convention on the Law of
Treaties, which provides inter alia that “[a]ny one of the parties to a dis-
pute concerning the application or the interpretation of article 53 or 64”,
relating to conflicts between treaties and peremptory norms of general

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                      ARMED ACTIVITIES (JUDGMENT)                        50

international law, “may, by a written application, submit it to the Inter-
national Court of Justice for a decision unless the parties by common
consent agree to submit the dispute to arbitration”.
   121. In its Counter-Memorial the DRC noted that Rwanda’s Memo-
rial invoked inter alia “the alleged irrelevance of the Congo’s reference to
the Vienna Convention on the Law of Treaties”, and the DRC referred
the Court in this regard to the arguments which it had presented at the
provisional measures phase. At the hearings, the DRC explained that
Article 66 of the Vienna Convention on the Law of Treaties, to which
Rwanda is a party, allows the Court to rule on any dispute concerning
“the validity of a treaty which is contrary to a norm of jus cogens”. In
this regard the DRC argued that reservations to a treaty form an integral
part thereof, and that they must accordingly “avoid either being in direct
contradiction with a norm of jus cogens, or preventing the implementa-
tion of that norm”. According to the DRC, Rwanda’s reservation to
Article IX of the Genocide Convention, as well as to “other similar pro-
visions and compromissory clauses, seeks to prevent the . . . Court from
fulfilling its noble mission of safeguarding peremptory norms, including
the prohibition of genocide”, and must therefore be regarded as “null
and void”.

   122. In reply to Rwanda’s reliance at the hearings on Article 4 of the
Vienna Convention, which provides that the Convention applies only
to treaties which are concluded by States after its entry into force
with regard to such States, the DRC contended that “the supremacy
and mandatory force of the norms referred to in this Convention
(Articles 53 and 64) bind States irrespective of any temporal considera-
tion or any treaty-based link” ; according to the DRC, the rule can there-
fore “have retroactive effect in the overriding interest of humanity”.
In this connection, the DRC cited the Judgment of 27 June 1986 in
the case concerning Military and Paramilitary Activities in and against
Nicaragua, where the Court held that there was an obligation on the
United States to respect the four Geneva Conventions “in all circum-
stances”, since such an obligation “does not derive only from the Con-
ventions themselves, but from the general principles of humanitarian
law to which the Conventions merely give concrete expression”. The
DRC also invoked the “moral and humanitarian principles” to which
the Court had referred in its Advisory Opinion on Reservations to
the Convention on the Prevention and Punishment of the Crime of
Genocide, and it asked the Court “to safeguard [those principles] by
finding that it has jurisdiction”.
   123. For its part, Rwanda contended in its Memorial that the DRC’s
contention that the norms of jus cogens are capable of conferring juris-
diction on the Court is without foundation, since it ignores the principle,
well established in the Court’s jurisprudence, that jurisdiction is always
dependent on the consent of the parties, even when the norm that a State
is accused of violating is a jus cogens norm. Rwanda added that the same

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                      ARMED ACTIVITIES (JUDGMENT)                        51

is true of the Court’s jurisdiction to entertain a dispute concerning viola-
tion of a norm creating obligations erga omnes. It recalled that, in its
East Timor Judgment, the Court held that “the erga omnes character of
a norm and the rule of consent to jurisdiction are two different things”.
Rwanda further contended that Article 66 of the Vienna Convention on
the Law of Treaties did not provide for “any” dispute regarding contra-
vention of a rule of jus cogens to be referred to the Court ; it was con-
cerned with “a very specific kind of dispute regarding one effect of norms
of jus cogens”. According to Rwanda, Article 66 “is part and parcel of
the machinery for the settlement of disputes regarding the interpretation
and application of the Vienna Convention” and confers jurisdiction on
the Court “only in respect of disputes regarding the validity of a treaty
which is said to contravene a rule of jus cogens”, which is not at all the
case in this instance.

   124. At the hearings, and in response to the DRC’s argument that
Rwanda’s reservations to Article IX of the Genocide Convention and to
Article 22 of the Convention on Racial Discrimination were void because
they conflicted with a peremptory norm of general international law
within the meaning of Article 53 of the 1969 Vienna Convention, Rwanda
further argued that Article 66 of the latter Convention cannot in any
event apply in the present case in view of the Convention’s temporal
scope. In this connection, it observed that the Genocide Convention, like
the Convention on Racial Discrimination, was concluded prior to the
entry into force for the two parties of the Vienna Convention, Article 4 of
which provides that it applies “only to treaties which are concluded by
States after the entry into force of the present Convention with regard to
such States”. Rwanda pointed out that the provisions of Article 66 of the
Vienna Convention, “being jurisdictional rather than substantive”, are
not declaratory of a rule of customary law and “can therefore bind States
only as a matter of treaty and only in accordance with the terms of the
treaty”. Rwanda added that, in any event, the application of Article 66 to
the present case would serve no purpose, since it could only “give the
Court jurisdiction over whether Rwanda’s reservation is valid” ; however,
Rwanda accepts that the Court “can rule on that question . . . as part of
its task of determining whether the Genocide Convention affords a basis
of jurisdiction”.

                                     *
  125. The Court recalls that Article 4 of the Vienna Convention on the
Law of Treaties provides for the non-retroactivity of that Convention in
the following terms :
       “Without prejudice to the application of any rules set forth in

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                       ARMED ACTIVITIES (JUDGMENT)                         52

    the present Convention to which treaties would be subject under
    international law independently of the Convention, the Convention
    applies only to treaties which are concluded by States after the entry
    into force of the present Convention with regard to such States.”
   In this connection, the Court notes first that the Genocide Convention
was adopted on 9 December 1948, the DRC and Rwanda having acceded
to it on 31 May 1962 and 16 April 1975 respectively (see paragraph 38
above) ; and that the Convention on Racial Discrimination was adopted
on 21 December 1965, the DRC and Rwanda having acceded on 21 April
1976 and 16 April 1975 respectively (see paragraph 74 above). The Court
notes secondly that the Vienna Convention on the Law of Treaties
entered into force between the DRC and Rwanda only on 3 Febru-
ary 1980, pursuant to Article 84, paragraph 2, thereof. The Conventions
on Genocide and Racial Discrimination were concluded before the latter
date. Thus in the present case the rules contained in the Vienna Conven-
tion are not applicable, save in so far as they are declaratory of custom-
ary international law. The Court considers that the rules contained in
Article 66 of the Vienna Convention are not of this character. Nor have
the two Parties otherwise agreed to apply Article 66 between themselves.

   Finally, the Court deems it necessary to recall that the mere fact that
rights and obligations erga omnes or peremptory norms of general inter-
national law (jus cogens) are at issue in a dispute cannot in itself consti-
tute an exception to the principle that its jurisdiction always depends on
the consent of the parties (see paragraph 64 above).

                                   * * *
   126. The Court concludes from all of the foregoing considerations that
it cannot accept any of the bases of jurisdiction put forward by the DRC
in the present case. Since it has no jurisdiction to entertain the Applica-
tion, the Court is not required to rule on its admissibility.

                                   * * *
   127. While the Court has come to the conclusion that it cannot accept
any of the grounds put forward by the DRC to establish its jurisdiction
in the present case, and cannot therefore entertain the latter’s Applica-
tion, it stresses that it has reached this conclusion solely in the context of
the preliminary question of whether it has jurisdiction in this case — the
issue to be determined at this stage of the proceedings (see paragraph 14
above). The Court is precluded by its Statute from taking any position on
the merits of the claims made by the DRC. However, as the Court has
stated on numerous previous occasions, there is a fundamental distinc-
tion between the question of the acceptance by States of the Court’s juris-

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                      ARMED ACTIVITIES (JUDGMENT)                        53

diction and the conformity of their acts with international law. Whether
or not States have accepted the jurisdiction of the Court, they are
required to fulfil their obligations under the United Nations Charter and
the other rules of international law, including international humanitarian
and human rights law, and they remain responsible for acts attributable
to them which are contrary to international law.

                                  * * *
  128. For these reasons,
  THE COURT,
  By fifteen votes to two,
  Finds that it has no jurisdiction to entertain the Application filed by
the Democratic Republic of the Congo on 28 May 2002.
  IN FAVOUR :  President Shi ; Vice-President Ranjeva ; Judges Vereshchetin,
    Higgins,    Parra-Aranguren,     Kooijmans,    Rezek,    Al-Khasawneh,
    Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc
    Dugard ;
  AGAINST : Judge Koroma ; Judge ad hoc Mavungu.

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this third day of February, two thousand
and six, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Democratic
Republic of the Congo and the Government of the Republic of Rwanda,
respectively.

(Signed) President.                             (Signed) SHI Jiuyong,
                                                         President.
                                            (Signed) Philippe COUVREUR,
                                                         Registrar.

   Judge KOROMA appends a dissenting opinion to the Judgment of the
Court ; Judges HIGGINS, KOOIJMANS, ELARABY, OWADA and SIMMA append
a joint separate opinion to the Judgment of the Court ; Judge KOOIJMANS
appends a declaration to the Judgment of the Court ; Judge AL-
KHASAWNEH appends a separate opinion to the Judgment of the Court ;
Judge ELARABY appends a declaration to the Judgment of the Court ;

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                    ARMED ACTIVITIES (JUDGMENT)                     54

Judge ad hoc DUGARD appends a separate opinion to the Judgment of
the Court ; Judge ad hoc MAVUNGU appends a dissenting opinion to the
Judgment of the Court.

                                                  (Initialled) J.Y.S.
                                                  (Initialled) Ph.C.

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